
COPYRIGHT DEPOSIT 



THE CONSTITUTIONAL HISTORY 
AND GOVERNMENT 



OF THE 



UNITED STATES 



a Series of Lectures 



/ BY 

JUDSON S. LANDON, LL. d. 








BOSTON AND NEW YORK 

HOUGHTON, MIFFLIN AND COMPANY 

(£I)e Htoerstiie Press, Cambritise 

1889 









Copyright, 1S89, 
By JUDSON S. LANDON 

All rights reserved. 



The Riverside Tress, Cambridge : 
Printed by H. 0. Houghton and Company. 



PREFACE. 



/S* 



These lectures were delivered before the Senior classes at 
Union College during the four years in which the author was 
President ad interim of that Institution. Partty narrative 
and partly expository, they are an attempt to present in a sort 
of perspective something of the story of the Constitution, its 
significance and development. 

Schenectady, N. Y., March 4, 1889. 



CONTENTS. 



LECTURE I. 

Introductory Outline. — Free Institutions in the Colo- 
nies. — Functions op the National and State Govern- 
ments 



LECTURE II. 

Colonial Governments and Liberties. — Threatened Ag- 
gressions of the Crown. — Independence. — Formation 
of State Constitutions . . .* 18 



LECTURE III. 

Necessity for a National Government. — The Articles of 
Confederation. — Failure of the System. — Events lead- 
ing to the Constitutional Convention. — The Conven- 
tion. — Its Proceedings, Debates, and Compromises. — 
Completion of the Constitution 46 



LECTURE IV. 

Ratification of the Constitution. — Proceedings in the 
Conventions of the Several States 83 

LECTURE V. 

Practical Establishment of the Government under the 
Constitution. — First Measures.' — Influence of Hamil- 
ton and Jefferson. — The Hamiltonian Era of Liberal 
Construction. — Formation of Parties. — Decisive Meas- 
ures of the Government 97 

LECTURE VI. 

The Passage of the Nation through Perils. — Troubles 
with France and England. — The Alien and Sedition 



vi CONTENTS. 

Laws. — Virginia and Kentucky Resolutions. — Down- 
fall of the Federal Party. — Jeffersonian Era of 
Strict Construction. — Fears of Monarchy. — Of Disso- 
lution. — French and English Outrages. — Embargo and 
Non-Intercourse. — "War with England. — Peace. — Hart- 
ford Convention. — Era of Good Feeling. — Internal 
Improvements. — The Monroe Doctrine 120 



LECTURE VII. 

The Jackson Era. — Bank. — Office-holding. — Tariff. — 
Nullification. — Whether the Constitution is a Compact 
between States, or the Supreme Government over the 
People? — Annexation of Texas. — Close of the Period 
of Narrow Construction 146 



LECTURE VIII. 
Slavery in the United States 175 

LECTURE IX. 

The Reconstruction Period. — The Negro as a Citizen and 
Voter. — International Arbitration. — Interstate Com- 
merce. — Era of Great Enterprises. — Tariff. — Taxa- 
tion 207 

LECTURE X. 

The Influence of the Supreme Court upon our Constitu- 
tional Development and Growth 226 

LECTURE XI. 
The Influence of the Supreme Court. — Continued . . .257 

LECTURE XII. 

The Thirteenth, Fourteenth, and Fifteenth Amendments, 
as construed by the supreme court .... *".... . 281 

LECTURE XIII. 

Some of the Causes of the Stability and Success of our 
Dual System of Government 303 



CONTENTS. vii 

LECTURE XIV. 
Some Supposed Dangers . 329 

Supplemental Chapter 342 



APPENDIX. 

Articles of Confederation 351 

Constitution 35!) 

List of Members of the Supreme Court of the United 
States 376 



CONSTITUTIONAL HISTORY 



GOVERNMENT OF THE UNITED STATES. 



LECTURE I. 

Introductory Outline. — Free Institutions in the Colonies. 
— Functions of the National and State Governments. 

The Constitution of the United States provides for the 
national government of all the states, as though all formed 
one. The constitution of every state provides for its domestic 
government as though it stood alone. Supplementing but not 
conflicting with one another, the two governments complete 
one system of national and domestic government, in which the 
liberty and security of the individual promote the power and 
security of both nation and state. Tested by the experience 
of a century, the system is approved by its practical results. 
Improvements in details may be suggested by the reformer, 
but not in the scheme itself. 

Before the American experiment was initiated, it was a 
cardinal rule of the political philosopher that a republic was 
practicable only in a state of very small territorial extent. 
But the American republic seems to gain in vigor and solidity 
with territorial expansion. Her people are satisfied with the 
system and proud of it. This pride and satisfaction are ele- 
ments alike of its strength and its excellence. It may not 
be the best scheme for every people who wish self-govern- 
ment ; but in this age, no people intelligent enough to adopt 
self-government would undertake to do it without first mak- 
ing a careful study of our system. To the American youth 
about to pass from his college into active life, the like study 
may be earnestly commended. 



2 CONSTITUTIONAL HISTORY. 

I shall first speak of the constitutions of the states and that 
of the United States historically. 

I shall try to give some idea of the governmental condition 
of the colonies while dependent upon Great Britain ; of the 
Union formed to resist the aggressions, and to throw off the 
yoke of that government ; of the establishment of our national 
independence, and the formation of our state governments ; of 
the kind of national government which existed during and 
after the war of the Revolution ; of the imperfections of that 
government and the distress and anarchy which it promoted ; 
of the events which led to the meeting of the convention of 
delegates from the states to form our present Constitution ; 
of some of the plans and measures which were discussed, and 
the manner in which differences in interest and opinions were 
compromised and expressed in constitutional form ; of the 
contentions which followed in the different states upon the 
question whether the Constitution proposed should be adopted 
or not ; of its final adoption ; and then of some of the leading 
questions in our constitutional history which divided parties, 
agitated the country, and at times threatened the dissolution 
of the government from the day of the adoption of the Con- 
stitution down to the present time. 

This recital, in which causes will be indicated rather than 
explored, will serve to show how the Constitution, which in 
the beginning was practically very weak and feeble as a sys- 
tem of government, gradually attracted to itself the confidence 
and respect of the people, and finally attained great strength 
and solidity. There will be occasion to speak of the action 
of presidents, statesmen, political parties, courts of justice, and 
especially of that potent restorer of harmony amidst conten- 
tion and of system out of confusion, the Supreme Court of 
the nation, and of our dual system of government under both 
national and state governments ; how each government has 
its proper sphere and is helpful to the other, but how difficult 
it has sometimes proved, under the stimulus of interest and 
partisanship, to discover and respect the line that divides the 
state from the national authority. 

It will, I think, also appear that these constitutions were 
not to any great extent inventions, but the natural develop- 



DEVELOPMENT OF SIMPLE SYSTEMS. 3 

ment of the simple systems by which our forefathers were 
permitted to manage their colonial and township affairs, and 
which they adapted and conformed to their situation, neces- 
sities, spirit, and character, and then perfected and expanded 
with their growth and changing circumstances. 

The early colonists were here in the wilderness. Other 
colonists had preceded them. They too sought new homes, 
but most of them found their graves instead. When these 
came, they could not know whether they would plant a na- 
tion, or share the fate of those who had gone before. Surely, 
no king over the wide ocean could have had the heart to 
wish these exiles ill. If when first they ventured forth, or 
after they had gone, charters were asked in their behalf, well 
might the king have exclaimed, " Charters ! God pity the 
miserable wanderers ! Charters are only parchment. Give 
them charters." 

But the exiles prospered. They were nominally under 
the government of the English crown, but they were so in- 
significant and far away that they were as much out of the 
royal mind as out of sight. Their weakness and their wants 
required them to unite and protect each other. Their equal- 
ity of condition led them to be kind and just to each other. 
Equality of condition led to equality of inheritance, and pre- 
vented the growth of an aristocracy. They desired liberty of 
conscience for themselves, and were slowly and finally led to 
secure it by conceding it to others. After the family and 
the church, the township was the nearest object of their care 
and interest, and the welfare of the township required their 
attention to the colony. Profiting by the neglect of the 
mother country, they took large liberties in making their own 
laws, and soon found it hard to distinguish between the liber- 
ties tolerated by the crown and those it had conceded. 

Their laws were adapted to their situation. But to make 
laws and secure obedience to them is to exercise the functions 
of government. And from the first half of the seventeenth 
until the last quarter of the eighteenth century — a period of 
at least four generations — they were trained and developed 
in the theory and practice of self-government. 

The opportunity for self-government developed a capacity 



4 CONSTITUTIONAL HISTORY. 

for it. The colonies had separate territories and systems. 
Local self-government was exercised to the utmost limit their 
charters would permit. Naturally, the leading colonists be- 
came familiar with the several systems, and adopted as far 
as they could the best features of the best of them. Thus 
their systems improved side by side and became very good 
and very much alike. The colonies really became a nation 
without realizing that they had been long tending in that 
direction. Surely, a great people of common race origin, al- 
legiance, language, customs, contiguity of territory, and sim- 
ilarity of government and institutions, lacked only the bond 
of a single organism for some object of general welfare to 
complete their national unity. They thoroughly appreciated 
the value of their privileges of local self-government, and were 
not at all disposed to submit to the oppression which threat- 
ened to subvert it; and when they found out that they all felt 
alike about it, they would not submit. They stretched out 
their hands towards each other, and needed only to close 
them to find union in their grasp. 

When, therefore, the colonies became ripe for independence, 
and rebelled against King George and declared themselves 
free and independent, they had before them no very difficult 
plan of reconstruction. 

They made their constitutions by declaring their rights 
and powers as they had been accustomed to understand and 
exercise them. They erased the word " King," and wrote 
" People ; " they changed their flag ; and when, in the course 
of their struggle to make good their Declaration of Inde- 
pendence, they felt the importance of a compact union of 
the states, they tried to form a "perpetual union" by the 
" Articles of Confederation." 

This, however, was a new government, not so much over the 
people as over the states, the creations of the people. They 
neither well understood how to make it, nor were they able to 
obtain the consent of all the states to make it quite equal to 
their own standard of excellence. They made it the creature 
and servant of the states. They did not see that national pow- 
ers must be the powers of a sovereign, not those of the servant 
of many separate masters. But they were wise enough to 



LOCAL SELF-GO VEENMENT. 5 

recognize its defects and to profit by their experience. Their 
statesmen studied the history and structure of other govern- 
ments, and with rare good sense applied the lessons of his- 
tory and philosophy to their own peculiar condition. How to 
present all the states as an indivisible nation to the world, 
and yet remain separate republics with respect to each other ; 
how to give to each state the united support and protection 
of all the states, and not sacrifice the autonomy of any state, 
became the master problem. Circumstances happily con- 
spired with experience, good sense, and practical statesman- 
ship to aid in its solution. 

Nevertheless, when the government for national purposes 
was established by the Constitution, local self-government, as- 
suming the name of State-sovereignty, began to take alarm 
lest it should perish by the encroachment of the larger govern- 
ment. The alarm was magnified, and time, experience, and 
strife were necessary to show clearly the distinctions between 
the functions of the two governments, and to prove that both 
are essential parts of one excellent system. Finally it has been 
made to appear that the national government is a necessary 
guarantee of proper local self-government, and that any ten- 
dencies to hurtful encroachment may be corrected within the 
Constitution, or in extreme cases by amendment of it. 

The study of the development of self-government in the 
United States throws light upon the same experiment in 
other countries. When the French Revolution broke out in 
1789, the government of the United States under the Consti- 
tution had just begun operation. The French people, at least 
the educated classes, were familiar with the completed work. 
They were entirely familiar with the most approved theories 
of the right of the people to govern themselves, and of the 
methods of doing it. These theories had been the favorite 
studies of French philosophers, and our own statesmen had 
been greatly instructed by their precepts. Indeed, we owe 
much to Montesquieu, the celebrated author of the " Spirit of 
the Laws." His precepts of political science illuminated and 
instructed the minds of Madison, Hamilton, Randolph, Wil- 
son, and their co-laborers in the Federal Convention. The 
writings and speeches of these men, and the Constitution it- 



6 CONSTITUTIONAL PIISTORY. 

self, afford ample proof of the great influence of Montesquieu. 
Rousseau impressed Jefferson with his precepts and enthusi- 
asm, and the Declaration of Independence witnesses his influ- 
ence. But our fathers had the practical training in self-gov- 
ernment which the French had not, and hence they better 
knew how far it was safe to put theories to the test of prac- 
tice, and to trust a people, accustomed to the exercise of 
power, to its broader exercise. Hence independence here 
was a success from the day of its declaration, while in France, 
liberty rapidly degenerated into license, and the worst of 
crimes were perpetrated in its name. It was not until 1870 
that a republic was really established there, if, indeed, we can 
be quite sure that it is now established. No doubt, we owe 
our success largely to our preliminary training. 

A constitution implies or enumerates the powers which 
sovereignty exercises, or is permitted to exercise. Many 
efforts have been made to define " sovereignty." Practically, 
it consists in the power to originate and secure the perform- 
ance of ail governmental acts. 

The powers of sovereignty in the United States are par- 
celled between the nation and the state by the creators of sov- 
ereignty itself, that is by the people. The parcel allotted to 
one government is, with few and not important exceptions, 
not used by the other. The United States is sovereign in 
certain particulars. The states are sovereign in certain other 
particulars. The people are the creators of all these powers. 
The people have enumerated or defined them, and distrib- 
uted and deposited them among the two governments. While 
they remain deposited they are not retained by the people. 
What the people have retained is the power to resume and 
modify, restrict or enlarge them, and redistribute and rede- 
posit them. The permanency of the deposit of sovereign 
powers without change or readjustment rests upon the wis- 
dom and efficiency with which they are exercised. Each sov- 
ereignty has, or ought to have, the powers necessary for the 
complete performance of its functions, and the functions of the 
one should not conflict with those of "the other. 

A constitution may be written, as it is in the United States, 
or unwritten, as in Great Britain. In a certain sense, every 



SOVEREIGNTY AND CONSTITUTIONS. 7 

people, tribe, association, or family in which government is 
administered has a constitution. The power of one to exact 
obedience from another implies the existence of some rule or 
law conferring the right to command, imposing the duty of 
obedience, and reciprocally imposing upon the governor, cap- 
tain, chief, or father the duty of protection, and conferring 
upon the follower, associate, subject, or child the right to 
claim justice and protection. These powers and duties are 
usually under unwritten constitutions very imperfectly de- 
fined; the struggle of modern times has been to so adjust and 
define the powers of the governors as best to promote the 
happiness of the governed. 

The word " constitution," as employed in modern times, usu- 
ally means a system of government in which the people have 
some share in making the laws. Thus, ever}' government of 
Europe is now a constitutional government, except those of 
Russia and Turkey. Some local officers are elected by the 
people in Russia. Brazil is the only monarchy in America, 
and Brazil has a Senate and Assembly chosen by the people. 
Most European constitutions are usually found written in 
some law which the king or ruler has been graciously pleased 
to approve, conferring this power upon the people, usually to 
be represented in the lower chamber of the law-making body. 

A republican constitution is, or ought to be, that funda- 
mental regulator of sovereign power which assigns the proper 
measure of authority to the governors, and the proper meas- 
ure of liberty to the people. The problem is, so to confer 
authority, and so reserve liberty, that each shall serve as a 
check or balance upon the other, and that each, without be- 
ing dangerous in itself, may help and not encroach upon the 
other. 

Theoretically, the Constitution of Great Britain is the 
result of the gradual growth of customs, so long established 
that the memory of man does not recall their origin, so wise 
that they command the common assent of the good, and so 
well known that their record is unnecessary. It is gener- 
ally known that the real administration of that kingdom is 
controlled by the party in power as represented in the House 
of Commons. The leader of the party becomes prime minis- 



8 CONSTITUTIONAL HISTORY. 

ter, and the prime minister, with the associates that he places 
in his cabinet, becomes what is called the government. When 
this government loses the confidence of the House of Com- 
mons, it resigns, and a government enjoying that confidence 
takes its place and rules the kingdom. And yet there is no 
written law that prescribes this most important system of 
parliamentary government. It has in the course of a few 
generations, by a very natural development, absorbed all the 
governmental powers of royalty. The power that remains 
to the queen is the power to be an imposing fiction. If the 
queen should be superseded by a statue of John Bull, whose 
assent to the will of the Parliament should be inferred from 
its silence, it would be difficult to distinguish between its 
governmental powers and hers. 

The laws of Parliament are omnipotent, but no written law 
confers the power upon Parliament to make the laws. The 
Constitution is subject at any time to change by the law-mak- 
ing power. Its real protection from change is in the conser- 
vatism of that power and of the people. That conservatism 
has hitherto proved an ample protection. Such a reliance 
would be unsafe in this country. We seem to need written 
constitutions which shall plainly define and assert the limits 
of the law-making and other powers. The tendency of our 
legislators is usually in the direction of innovation, not of con- 
servatism ; we need constitutional limitations to restrain our 
governmental rashness, not to say rawness. Our statesmen 
lack the conservative self-poise, or, if you please, self-compla- 
cency, of the educated Englishman, who has been trained in 
the school of her Majesty's government. He feels the in- 
fluence of his training, and respects the stability of the ante- 
cedent centuries of his country's repose. For him to be rash 
would be a reflection upon the traditions and systems of 
which he regards himself a part. Here men pass from pri- 
vate to public employment, with but little knowledge of gov- 
ernmental principles, and it is needful to fence them in with 
the limitations which wiser men have devised. 

If our national Constitution were to be amended to-day 
by our wisest men, they would probably write in it more re- 
straints upon the law-making power. Possibly this tendency 



GOVERNMENT BY LAW. 9 

of the American legislator, to go straightway to the outer- 
most verge of the constitutional limit, has been stimulated 
by the fact that the limit has been set ; and the Englishman's 
tendency, not to pass beyond the long respected limits, has 
been caused by the consciousness that he has the power to do 
mischief, and may do it if he is not careful. The American 
beats against the constitutional barrier, the Englishman care- 
fully confines himself within it ; the one is impatient of the 
restraints that confine him, the other sets restraints upon 
himself. 

We come thus to a leading principle in American govern- 
ment. It rests as much as possible upon the laws, and as 
little as possible upon men. We are apt to think that that 
principle is of fundamental soundness and safety. If the laws 
are wise and right, it makes very little difference to the people 
by whom they are administered, so long as it is honestly and 
efficiently done. If we had a Gladstone or a Bismarck at the 
head of our government, we should be no better off than we 
are with President Cleveland, or Harrison, or any other fair 
man of good intelligence. The Constitution and laws hav- 
ing been made, we ask that they shall be carefully observed. 
Thus the Constitution and the laws are our real rulers ; the 
men who for the time being are at the head of the govern- 
ment are the servants of the laws, and are simply called upon 
to see that they are properly respected and administered. 
And so, it may well be that it is even better to have as rulers 
honest men of moderate ability, who will strive diligently to 
know their duty and to do it, than to have men of higher 
capacity, whose consciousness of their great abilities might 
tempt them, in the interest of their ambition, to leave the old 
and safe ways, and experiment in new and dangerous ones. 

Some reference to the respective functions of the national 
and state governments may be useful before we enter upon 
the history of the Constitution and its practical application 
to the government of the nation and states. 

The relations which the United States holds to the states 
are peculiar. The United States can hardly be said to have 
physical existence. It is rather a power than a body — a 
power like gravitation, compelling stability and order, and 



10 CONSTITUTIONAL HISTORY. 

most felt when most resisted. It holds a small township on 
the Potomac, where are situated its principal public build- 
ings and the headquarters of its chief officers. The imperial 
domain of the continent is parcelled among the states, exist- 
ing or to exist. The United States, it is true, owns land in 
the territories, and in some of the states, but this it purposes 
to sell, and then the states will govern those who occupy it. 
It cannot buy land in any state upon which to erect a fort or 
public building, without obtaining the " consent of the legis- 
lature of the state." In short, it is a great corporation, of 
which every person within the states and territories is a mem- 
ber. It is itself invisible, but its power and influence are al- 
ways and everywhere present. We confide in its presence 
and power, though we have no need or desire to invoke or 
witness them. Silent, invisible, and motionless, until needed ; 
then its force, obedient to the written law, regulates, controls, 
and protects. 

The government which most affects us is, however, com- 
mitted to the state. Our liv*es, liberty, character, and prop- 
erty are mainly under the protection of the state laws. The 
state regulates, so far as governmental regulation is necessary, 
our local and domestic affairs. If one is injured in his per- 
son, property, or character, he looks to the state government 
for redress. He buys and sells ; is married or divorced ; estab- 
lishes schools, churches, manufactories, and railroads ; makes 
his will; inherits property; organizes societies and corpora- 
tions, under the state laws. Shall property descend to the 
oldest son, or to all the children equally? Shall any limita- 
tions be placed upon the power to make a will, upon mar- 
riage, upon the sale of liquor, upon the right to vote, upon 
the hours of labor, upon the age at which children shall be 
hired to perform it, or upon carrying on dangerous or un- 
healthf ul occupations ? These are questions committed to 
the state ; and, in these matters, recourse must be had to the 
state courts for the enforcement of rights, or the prevention 
of abuses, whenever any contention arises between citizens 
of the same state. These instances illustrate, but do not ex- 
haust, the subjects committed to state regulation. In short, 
the state has every governmental power except those which 



DUAL SYSTEM OF GOVERNMENT. 11 

fall within three exceptions, namely : First, the powers com- 
mitted to the United States as enumerated in the United 
States Constitution. Second, the powers denied by that Con- 
stitution to the state. Third, the powers denied by the state 
constitution itself to its own government. 

These exceptions are involved in and will be unfolded in 
the discussion which will follow. 

To illustrate the powers which are delegated to the United 
States and are not exercised by the states : You go to the post- 
office, and mail or receive a letter, and you are dealing with 
the United States. For a two-cent stamp your letter can be 
carried to California, or any other state ; for a five-cent stamp 
to any country in Europe. It is much better that one govern- 
ment should regulate this business than many. New York 
might have one rate of postage, Pennsylvania another, and 
every state its own system of carriage, and it would be diffi- 
cult to tell how much it would cost, or how long it would take 
to get your letter to California. The United States can do it 
so much better for every state, and can so much better make 
the necessary regulations with foreign countries, that we con- 
cede at once that in this respect the United States is a useful 
creation. The United States regulates commerce with for- 
eign nations and among the several states. This makes the 
navigation laws uniform at every port, and the rate of duties 
uniform. It prevents one state from making a discriminating 
tax against the products of another state. Practical^, it re- 
sults in free trade between the states. The United States 
makes the treaties with foreign powers. It coins money and 
establishes its value, so that money is of equal value in every 
state. It maintains the army and navy, declares war and 
establishes peace, and guarantees to every state a republican 
form of government. It is plain that these great powers are 
better intrusted to one government than to many, simply as 
a matter of convenience. But it is also necessary that these 
powers shall be exercised by a government that has the 
strength to enforce them ; and in that view the United States 
is many times more powerful than the average single state. 
You are citizens of the state in which you reside, but you are 
also citizens of the United States. When you travel abroad 



12 CONSTITUTIONAL HISTORY. 

your citizenship of your state might not prove adequate to 
your protection ; but citizenship of the United States implies 
that you may, if necessity properly requires it, invoke the 
protection of the united strength of all the states. And the 
fact that this is so will make it unnecessary for you to invoke 
it. Might can compel right, but the knowledge that the 
might exists is usually the only compulsion necessary. More- 
over, it costs less to provide one strong army for all, than so 
many separate armies. 

The United States has not had committed to it a great 
many powers. I have ' already enumerated the most impor- 
tant of them. The number is limited, for none were given 
to it which were not thought to be of general necessity, con- 
venience, and usefulness. But, generally speaking, the pow- 
ers committed to it are exclusive and supreme. In order to 
execute them efficiently, great detail of operations has been 
found to be useful. From the multitude of details, as we 
read about them in the newspapers, we are led to think 
that the nation overshadows the states. But in fact this is 
not so. If we pay careful attention, we shall see that it is 
the habit of the daily press to go largely into the small de- 
tails of the action of the President and of the great officers 
of state at Washington. The people are interested in these 
trifles, perhaps more than in great affairs. The fact is not 
unworthy the notice of the practical statesman. He ought to 
know to what extent the people are interested in gossip and 
trifles. Nor should he despise the smaller matters, which 
give pleasure and satisfaction and do no injury. But the 
United States is not the real governor or ruler of the people. 
The affairs committed by the Constitution to its control are 
too few for that. Its direct governing powers are limited to 
the measures necessary to give it complete control of its own 
departments and agencies. Thus, if one defrauds the revenue, 
counterfeits the coin, robs the mail, violates the rights con- 
ferred, or regulations imposed, by the laws of the United 
States, or resists its authority, he will feel the force of the 
government of the United States. Indirectly, through the 
appellate jurisdiction of the Supreme Court, in the cases 
enumerated in the Constitution, the United States influences 



MAGNITUDE OF NATIONAL DEPARTMENTS. 13 

the action of the state governments, and prevents their inter- 
ference in the national affairs, and sometimes remedies the 
injustice done by the state to its citizens. But this influence 
over the government of a state is not any suspension of that 
government. Its governmental functions may be corrected, 
without being in the least impaired. The greater part of the 
government, certainly that which most usually and nearly 
affects us, is exercised by the states. Our interests centre in 
domestic and local affairs. We are interested in the concerns 
of our neighborhood, town, county, and state. Aside from 
the post-office officials, we rarely come in contact with a fed- 
eral officer, except now and then a military or naval officer on 
leave of absence. If we take an interest in moral, social, 
educational, or humanitarian reforms, the nation cannot law- 
fully help us ; our field is the state or under its favor. 

With the great growth of the nation, the interests com- 
mitted to its care and control have grown to be great. Our 
foreign relations are extended to every civilized nation ; our 
commerce and commercial relations are world-wide ; our rev- 
enue system brings to the treasury nearly one million dollars 
a day ; our postal system reaches every hamlet in the United 
States, and unites with other systems that extend around the 
globe. Should foreign or domestic war require it, our little 
army would enlarge to mighty hosts, our navy expand with 
the magic that skill and energy and money would evoke. 
But in times of peace, all these national agencies move on in 
the grooves that time and natural growth and routine have 
formed. The treasury, postal, and foreign departments are 
great organisms. The officers in charge preside over the 
operations of these organisms. They are intelligent men, if 
in their short terms of office they come to a full knowledge 
of the systems, which have been established pursuant to law, 
and developed and perfected under the direction of their 
predecessors. 

To a great extent, also, the executive department is man- 
aged in conformity with long established system. The Presi- 
dent must do what the usages of his office require. The great 
executive offices have grown to be greater than any officer in 
them. If these offices are at first established upon the proper 



14 CONSTITUTIONAL HISTORY. 

basis, their subsequent operation is simple ; their expansion 
with the increase of business is a natural growth. System 
becomes king under a government of law. The law directs ; 
that direction never changes if the law is stable ; the initial 
operation of the law once properly systematized, thenceforth 
established precedent is followed, and subordinates can tread 
the steps of the revolving wheel. 

The English criticism upon our Constitution is, that it is 
written, and therefore unchangeable except by amendment ; 
that experience shows that amendment is rarely attempted, 
because difficult to be accomplished ; that therefore the great 
nation of to-day is cramped within the charter framed a cen- 
tury ago ; a charter which, however well it may have been 
adapted to a small people, with few needs and imperfect de- 
velopment, must necessarily be ill adapted to a great people, 
with great needs, great resources, and great development. In 
other words, the garment made for the infant in its cradle 
must do service for the giant in his strength. 

This criticism seems plausible, but it is unjust. To change 
the figures lightly : The child is father to the man. The in- 
fant in its cradle becomes the giant in manhood, with the 
same members, organs, powers, and functions. If these are 
perfect in their germ, maturity develops but does not multi- 
ply them. The powers conferred by the Constitution a cen- 
tury ago remain unchanged. Time has expanded and de- 
veloped, but has not multiplied them. 

Their expansion and development have been sufficiently 
ample to embrace every subject that ought to be brought 
within the scope of national influence and control. Foreign 
criticism takes little note of that great body of governmental 
powers which are reserved to the states, or may be committed 
by the people to them, and with which the nation has noth- 
ing to do. Reforms in the laws and in the methods of do- 
mestic government are matters of state concern. England 
has not refused to reform her laws and methods of govern- 
ment, following in many important particulars the examples 
which have been given her by the states of the Union. The 
powers reserved to the people in these respects embrace 
nearly every governmental power essential to a wise and lib- 



HARMONY OF THE TWO SYSTEMS. 15 

eral government. The Constitution of the United States 
enjoins and promotes, instead of restricting, the best possible 
republican domestic government which the people can devise 
for their respective states. 

The hostile foreign critic seems scarcely able to understand 
that, while the nation retains its Constitution as framed a 
hundred years ago, the several states are studious to attain in 
their domestic government the best results of the experience 
of the nineteenth century. Hostile criticism, to be just, must 
examine our dual system of government ; and, conceding that 
the states are unfettered in their domestic governments, must 
show that the growth of the nation has demonstrated the 
need of national powers for which our Constitution does not 
provide. 

The American critic, better instructed in this double sys- 
tem of government, is not slow to conclude thai the nation, 
under the Constitution, is now equipped with powers, ample 
and adequate for all its needs and purposes ; and that they 
could not be multiplied without a surrender by the people 
and the states of powers which, in the hands of the nation, 
might prove dangerous to their liberties. 

This conclusion must impress him with profound admira- 
tion for the wisdom of the framers of the Constitution. They 
felt that they were making an experiment ; but time, growth, 
development, expansion of territory, a new era of immigra- 
tion, enterprise, and invention, alike attest the adequacy and 
completeness of the powers granted, and the aptness and ac- 
curacy of their enumeration. 

With the lapse of the century, the national government 
has grown to fill its constitutional place. The state govern- 
ments experience now what they failed to do at first, — a sense 
of their security and freedom under the protection of the na- 
tion. They are freed from the care of foreign and national 
affairs ; they have become stronger, wiser, and better from 
the international association with each other. Assured of 
their position and powers, they govern the people wisely and 
happily. 

It will be instructive to trace some of the more important 
steps by which our national government passed from theory 



16 CONSTITUTIONAL HISTORY. 

into practice ; and to recount some of the difficulties, con- 
troversies, and dangers through which, as through a school of 
instruction and discipline, both states and nation have come 
the better to know, respect, and help each other, and to- 
gether form a harmonious government, for the benefit of the 
governed. 

The new government under the new Constitution went into 
operation as an experiment. It was a mere scheme upon 
paper, and its power to become useful or to continue to exist 
had to be demonstrated by the result. The powers conferred 
upon the new government were enumerated, but not defined. 
Their definition would ultimately depend upon the extent to 
which it would be prudent or practicable to assert and em- 
ploy them. Skill, courage, and energy would make good a 
broad definition. Timidity, cowardice, or disloyalty would 
shrivel them into insignificance. The practical test might 
make or ruin all. 

It is a curious reflection that the United States govern- 
ment, to begin with, was nothing but a few sheets of paper, 
lying in the drawer of the secretary of the confederate Con- 
gress, with about five thousand words written on them. 
Would the words ever have life, substance, strength, signifi- 
cance, supremacy? 

The hostility of the states was to be a constant danger 
from 1789 until the close of the late civil war. The claims 
of state-sovereignty, state-rights, and the consequent hostility 
of the states, were to mark the divisions between parties, to 
determine the election of officers, the fortunes of statesmen, 
the fate of measures proposed or undertaken. That hostility 
would threaten again and again the integrity of the Union, 
until finally, joining hands with the institution of slavery, it 
would strike at the nation's life, but slavery would be de- 
stroyed, hostility disarmed, and the Union, at last, trium- 
phantly established. 

The deadly blow was fortunately delayed too long. With 
time, the benefits resulting from the national power grew 
more and more obvious. Time is the wisest of alL As the 
nation managed to live, time took its part and multiplied its 
friends ; it gave steadfastness to new institutions, and but- 



GROWTH OF PATRIOTISM. 17 

tressed them with political habits, and long associations. 
Those who participated in the contentions that centred 
around the foundations of the government passed away. 
Younger generations came on, strangers to the bitterness and 
distrust of their fathers. They conceived a love for the Union, 
and a devotion to it, which sufficed to carry it through a sea 
of troubles. 

Xote. — While these pages are in the hands of the printer, " The American 
Commonwealth," by James Bryce, M. P., appears. It is a very full and appre- 
ciative presentation and exposition of our systems of government and of their 
practical operations. It certainly must be excepted from the remark in the text, 
that foreign critics do not seem to understand clearly the separate functions of 
our national and state governments, and the ready adaptability of the latter to 
the changes which experience suggests. Mr. Bryce has written in an admirable 
spirit of candor and fairness, and his criticisms, in which he lays bare many of our 
shortcomings in national, state, and municipal administration and legislation, 
deserve our candid consideration. He commends in the main our national and 
state systems, and where he has occasion to find fault with any of their parts, he 
does so in a kindly manner, and usually softens his implied severity by indul- 
gently conceding that, " after all, the practical result is much better than one 
would naturally expect." He pursues, however, with something like the zest of 
a good-natured detective, the abuses that creep into the practical administration 
of affairs, especially in our municipal governments ; nor does he spare legisla- 
tive and other kinds of official jobbery. " Political bossism " and the low plane 
upon which the political parties are conducted receive his severe denunciation ; 
not that he uses denunciatory terms, but because he has the faculty of stating 
his facts in such a way as to suggest denunciation. Still, his final judgment is 
that our resources are so great, our right tendencies so predominant, our patience 
under abuses so excusable, our confidence in our ultimate extinction of grosser 
evils so well founded, our respect for law so remarkable, and our national spirit 
so patriotic, that we must have before us a long, prosperous, and happy career. 
His closing words are : "And by so much as the people of the United States are 
more hopeful, by that much are they more healthy. They do not, like their fore- 
fathers, expect to attain their ideals either easily or soon ; but they say that they 
will continue to strive towards them, and they say it with a note of confidence in 
the voice which rings in the ear of the European visitor and fills him with some- 
thing of their own hopefulness. America has still a long vista of years stretch- 
ing before her in which she will enjoy conditions far more auspicious than Eng- 
land can count upon. And that America marks the highest level, not only of 
material well-being but of intelligence and happiness, which the race has yet at- 
tained will be the judgment of those who look not at the favored few for whose 
benefit the world seems hitherto to have framed its institutions, but at the whole 
body of the people." 

2 



LECTURE II. 

Colonial Governments and Liberties. — Threatened Aggres- 
sions or the Crown. — Independence. — Formation of State 
Institutions. 

Before the Declaration of Independence, July 4, 1776, the 
colonies afterwards composing the United States were depen- 
dencies of Great Britain. They were called colonies, and owed 
allegiance to the British crown. That allegiance they willingly 
paid. It implied the duty to aid, if need were, in defending 
the mother country against its enemies, and cooperating to 
subdue and punish them. It also implied that Great Britain 
should protect and defend the colonies from foreign invasion, 
and secure to them that measure of good government which 
was their due as British subjects, or was outlined in their 
respective charters. The colonies willingly lent their aid in 
support of the pretensions of England, against those of other 
European powers, to the territory afterwards composing the 
United States. From 1754 to 1760, France and England 
waged war for the dominion of the North American conti- 
nent. More than 25,000 sturdy provincials took part as aux- 
iliaries to the British regulars. The colonies defrayed the 
expenses of their own troops. The undisciplined provincial 
received scant respect or civility from his trained and merce- 
nary ally, and this fact contributed not a little to the series of 
reverses which, up to the year 1759, seemed to promise that 
the English dominion must give way to the superior skill and 
prowess of the French. But in that year, more than in any 
preceding, the provincial officer and soldier were rated at their 
proper value, and the tide of disaster was succeeded by victo- 
ries which, culminating in the capture of Quebec by the young 
and gallant Wolfe, gave the western world to the English 
race, ideas, language, and liberty. It is interesting to specu- 
late upon the possible contrary result. Suppose the French 



COLONIAL GOVERNMENTS. 19 

bad held Quebec, and had continued to hold the St. Law- 
rence River, Lake Champlain and Lake George, Lakes Erie 
and Ontario, the Ohio and Mississippi, and, as was their 
purpose, had pushed down the Hudson and held New York. 
Perhaps you and I would be Frenchmen, and this lecture 
would be upon the civil law among the Latin races, instead 
of upon the free institutions of the English-speaking people. 
Wolfe's capture of Quebec was one of the most marvellous 
and eventful successes ever won by hare-brained and desperate 
enterprise. However, it turned the tide of Empire, and the 
English flag waved from the ocean to the Mississippi. 

De Tocqueville, in his celebrated " Democracy in America," 
thus laments the loss of French ascendency in North Amer- 
ica : " There was a time when we might also have created 
a great French nation in the American wilds, to counterbal- 
ance the influence of the English upon the destinies of the 
new world. France formerly possessed a territory in North 
America scarcely less extensive than the whole of Europe. 
The three greatest rivers of that continent then flowed within 
her dominions. The Indian tribes which dwelt between the 
mouth of the St. Lawrence and the delta of the Mississippi 
were unaccustomed to any other tongue than ours ; and all 
the European settlements scattered over that immense region 
recalled the traditions of our country. Louisburg, Montmo- 
rency, Duquesne, Saint Louis, Vincennes, New Orleans (for 
such were the names they bore), are words dear to France and 
familiar to our ears. But a course of circumstances which it 
would be tedious to enumerate has deprived us of this mag- 
nificent inheritance." 

Before the Revolution every colony had its own separate 
government. The colonies had no governmental connection 
with each other. There was, however, that sympathy which 
arose from the fact that they were all colonies of Great Brit- 
ain, and the people mainly Englishmen. Those of New Eng- 
land had leagued together in the seventeenth century for com- 
mon defence against the Indians. 

In 1754 the colonies north of the Potomac met in a con- 
gress at Albany and proposed a plan for a government for 
their common defence, and for some other purposes affecting 



20 CONSTITUTIONAL HISTORY. 

their general welfare. The colonies feared it would encroach 
upon their local governments, and England feared it as a step 
towards independence. 

Their common race, language, allegiance, and customs, and 
sometimes their common danger, afforded the colonies a sort 
of bond of union, resting in sentiment rather than law. The 
people were proud to call themselves "Englishmen away 
from home," and they were prompt to claim all the rights 
and liberties of English subjects. 

Though every colony had its own peculiar government, 
all practically became very much alike. These governments 
were of three sorts : the provincial, the proprietary, and the 
charter. New Hampshire, New York, New Jersey, Vir- 
ginia, the two Carolinas, and Georgia had provincial gov- 
ernments. They were provinces very much as Ontario and 
Quebec in Canada now are. The king commissioned a gov- 
ernor, and appointed his council to advise and assist him. 
The commission to the governor and the instructions accom- 
panying it in effect constituted the charter of the province. 
These charters were at first frequently altered, but soon took 
about the following form : The governor could convene a gen- 
eral assembly of the freeholders or planters. This assembly 
formed the lower house, the council the upper, and the gov- 
ernor, representing the king, had the veto power. This leg- 
islature had the power to make local laws not repugnant to 
those of England, and to impose the necessary taxes. The 
governor could establish courts. The first charters did not 
provide for an assembly. 

Virginia, the first province, was settled in 1606. Her early 
charters were illiberal, and the colony almost perished. But 
concessions were soon made, and the people began to thrive. 
As the colony increased, the people demanded the right to 
make their own laws. In 1619, Sir George Yeardley, then 
governor, yielding to their demand, called a general assembly 
composed of representatives from the various plantations, and 
permitted them to exercise the functions of legislation. This 
was the first representative legislature that ever sat in 
America. It is interesting to notice that Hutchinson, the 
colonial historian of Massachusetts, speaks of this assembly as 



COLONIAL GOVERNMENTS. 21 

one would speak of the smallpox or measles. He says, '•' In 
the year 1620, a House of Burgesses broke out in the colony." 
But the governing council in England recognized and gave it 
permanent sanction. The example of Virginia was soon after 
followed in Massachusetts, Connecticut, New Hampshire, and 
Rhode Island. After the restoration of Charles II. in 1660, 
every colony had its assembly, with power to make laws, sub- 
ject to the veto of the governor, and subject also to the veto 
of the crown. In 1695, Parliament enacted that all colonial 
laws repugnant to any law enacted by Parliament should be 
void. 

The proprietary colonies were Maryland, Pennsylvania, and 
Delaware. That is, the king granted a patent or deed of the 
land of the district to be colonized to certain persons, to whom 
were confided the power and duty of providing, within cer- 
tain regulations expressed in the patent, the proper govern- 
ment for the colony. These powers were much the same as 
expressed in the commissions of the provincial governors. 
Maryland was granted to Lord Baltimore, Delaware to Lord 
Delaware, Pennsylvania to William Penn. These proprietors 
and their successors appointed the governors, the governors 
appointed a council, and the freeholders chose the assembly. 
In Delaware and Pennsylvania these laws were subject to the 
approval — or properly the disapproval — of .the crown, but 
in Maryland they were not. Thus the charter of Maryland 
was the first by which the proprietor and the delegates of the 
freemen were authorized to make the laws, free from the nega- 
tive of the crown. 

At the time of the Revolution there were three charter 
governments : Massachusetts, Connecticut, and Rhode Island. 
These charters might with propriety be called written consti- 
tutions. Those of Rhode Island and Connecticut were repub- 
lican in form, and so well adapted to the views of the people 
that when those colonies became states, they continued their 
charters as state constitutions. Charles II. granted a charter 
to the colony of Connecticut in 1662. That charter contin- 
ued as its constitution until 1818. The same king in 1663 
granted a charter to Rhode Island, and that charter remained 
the constitution of colony and state until 1842. Both of these 



22 CONSTITUTIONAL HISTORY. 

colonies were formed by emigrants from Massachusetts, who 
established their own governments without any authority from 
the crown, and afterwards procured the charters which con- 
ferred the same authority they had already exercised. These 
charters conferred the power of government upon the people. 
The people elected their governors and assemblies, and the 
king reserved no power to veto their laws. These facts are 
of great significance. The king by his own free gift, and pos- 
sibly without reflecting upon what he did, — certainly without 
reflecting upon the momentous influence of the example, — es- 
tablished two republican governments in America. Probably 
there did not then exist a human being capable of estimating 
the influence and consequence of that careless act of the king. 
Is it at all strange that when, more than a hundred years later, 
the American people came to form governments for them- 
selves, the republics of Connecticut and Rhode Island should 
be found to present examples worthy to be followed ? 

The New England town meetings greatly aided in develop- 
ing republican institutions in America. Connecticut furnishes 
a striking example of their influence. The towns of Windsor, 
Wethersfield, and Hartford were first organized as towns, 
and then each town sent its delegates to a meeting of the 
towns, not for the purpose of organizing a colony which should 
be superior to the towns, but which should be the more effi- 
cient instrument to execute their will. In other words, the 
colony was the arm of the towns in the cases in which the 
towns needed to put all their strength in a single arm, and 
upon this foundation the colony and state were erected ; thus 
the government of the people was as near the people as pos- 
sible ; and this also furnished the model upon which the gov- 
ernment of the United States was afterwards formed. 

The charter of Massachusetts, granted by William and 
Mary in 1692, was not so liberal in its provisions. The peo- 
ple of Massachusetts were often irritated by its restrictions, 
and the harsh manner in which they were enforced. It is not 
unlikely that these irritations were aggravated by comparison 
with the freedom accorded to Rhode Island and Connecticut. 
Certain it is that the people of Massachusetts took all, and 
probably more than all, the liberty their charter accorded 



COLONIAL LIBERTIES. 23 

them. The fewer the rights and privileges conceded by the 
charter, the greater was the number claimed by the people 
as the inherent rights and privileges of Englishmen. The 
provisions of the charter grew by construction and usage, 
possibly by usurpation, and came to be regarded as such valu- 
able guarantees of liberty that when, in 1774, the Parliament 
of Great Britain sought by " an act for the better regulating 
the government of Massachusetts Bay," to alter the constitu- 
tion of that colony as it stood under the charter of William 
and Mary, the whole continent was alarmed. The other colo- 
nies saw in the act an implication of the right to take away 
what liberties they themselves had come to enjoy under ex- 
isting forms of government — no doubt many of them with- 
out any written concession of right on the part of the king. 

New York, first named New Netherland, was settled by 
the Dutch in 1609, and was governed under powers conferred 
by the then republic of Holland upon the Dutch "West India 
Company. In 1664 it fell by conquest to the English. There- 
after, it had a provincial form of government. 1 

In New York the spirit of liberty was always strong and 
bold. After the English superseded the Dutch in the govern- 
ment, every attempt at oppression or extortion usually re- 
sulted in favor of the people. The Dutch did not trouble 
themselves much about forms of government, but they were 
the descendants of ancestors who had achieved their liberties ; 
they knew oppression when it touched them, and they would 
not submit to it. The English claimed liberty as the in- 

1 They who live in the valley of the Mohawk are sometimes reminded of the 
Dutch preoccupation of the country. The question came before the courts, 
"Who owns the bed of the Mohawk River ; the landowners on each side, or the 
state ? The answer was, the state. Why 1 First. Because it is a navigable 
river or public highway. Second. Because the State of New York succeeded to 
the same title that was held by the colony of New York, and the English colony 
of New York succeeded to the same title held by the Dutch colony, and the 
Dutch colony held the same title which the republic of Holland held to the bed 
of the like kind of rivers within its jurisdiction. Now, in Holland the civil law 
prevailed in 1664. The civil law was the law of the Roman Empire. The 
Roman law declares that the title to the bed of a navigable stream is held by the 
state, and not by the owners of the land on the banks or shores. And so it hap- 
pened that the title to property under the Mohawk River was, in the nineteenth 
century of the Christian era, determined by the laws of the Roman Empire, pos- 
sibly of the age of Augustus. 



24 CONSTITUTIONAL HISTORY. 

herent right of the people, not as the grace of the crown. 
They vexed the souls of the royal governors by the constant 
assumption of popular liberty. They did very much as they 
pleased ; they made their own laws, and evaded those of Par- 
liament if they did not like them. In 1697, the governor 
exclaimed to the legislature, " There are none of you but 
what are big with the privileges of Englishmen and Magna 
Charta." Down to the Revolution the people held fast to 
their liberties. 

But whatever the actual powers of the governments of the 
several colonies, there is little doubt that for the hundred 
years before the Revolution, their people practically enjoyed a 
greater measure of freedom than did the English subject at 
home. In New England every township was a Democracy 
where the people regulated their own affairs in their own 
way. The representatives, sent to the colonial assemblies, 
spake the voice and delivered the votes of these local Democ- 
racies. The colonies did not all choose their own governors, 
but they did choose their own assemblies, and these assem- 
blies claimed and exercised the power to frame the laws. It 
did not amount to much that the king in some of the colonies 
had the power to veto these laws, so long as he did not exer- 
cise it. Their laws were modelled upon the English plan. 
Their governments consisted of three departments, the exec- 
utive, legislative, and judicial ; and there is not much reason 
to doubt that, in practical results, they were nearly as repub- 
lican and as wise and good as the people wished. James II. 
tried to suppress the colonial legislatures, but the people man- 
aged to keep or resume them. Whenever the crown at- 
tempted to interfere, the people remonstrated, represented, 
and debated so much, that the home government grew weary 
of so great a noise over such small concerns. Besides, the 
colonists always made it a part of their policy to maintain 
friendship with such of their kindred and patrons at home as 
would be able to give them a helping hand at court. Their 
trade connections grew to be important, and these sometimes 
proved to be helpful in governmental matters. There is not 
much reason to doubt that our fathers, under the instruction 
of their interests and situation, attained a high degree of that 
worldly wisdom which was profitable to themselves. 



COLONIAL LIBERTIES. 25 

Their leading citizens became learned and able debaters in 
matters of government. They naturally came to the con- 
clusion that they were right in whatever they demanded or 
resisted. In their occasional petitions to the crown they as- 
serted broad theories. These the crown rarely admitted, and 
in practice so little regarded that the colonists generally had 
things their own way. They spoke of themselves always as 
devotedly loyal to the crown, and no doubt they believed 
they were ; but they were struggling with hardships and ad- 
versity in the wilderness, and they hoped the good king 
would graciously condescend to commiserate their misfortunes, 
and favor them with his kingly offices, and refuse to believe 
any unfriendly charges. The result generally was, that they 
received from the king what really was the kindest thing he 
could bestow upon them — his neglect. During the long 
struggle in which Charles I. was beheaded, and Charles II. 
excluded from the throne and exiled from the kingdom by 
Cromwell, the colonies were scarcely thought of. Parliament 
did indeed pass oppressive navigation acts, and acts in re- 
straint of trade and manufacture. The object of these acts 
was to give to English shippers, traders, and manufacturers 
every possible benefit of colonial custom ; also to prevent any 
reduction in the price of English land from colonial produc- 
tion. These acts were, however, very mildly enforced, and 
very easily and constantly evaded. The colonists did not 
greatly complain of them until about the close of the French. 
War. England then began to try to enforce them, but it was 
too late. These attempts only added to the grievances which 
culminated in open rebellion. 

One reason why the crown granted such large liberties to 
the colonists at first, and tolerated the assumption of larger 
liberties by them so long, is found in the fact that by the 
English law the colonies were regarded as civil corporations 
and not as political governments. The first colonists were re- 
garded as adventurers making hazardous ventures to improve 
their fortunes. The power was confided to them to estab- 
lish and maintain good conduct and order as essential to their 
success in their business ventures. Under this power these 
civil corporations developed into political governments. But 



\ 



26 CONSTITUTIONAL HISTORY. 

if they were civil corporations the crown had the right to take 
their charters away. This right would have remained per- 
fect, if the civil corporations had not somewhere in the stage 
of their growth and development emerged from their smaller 
state as civil corporations into the larger one of political 
governments. This transition and development were, and 
long had been, accomplished facts. Nevertheless, Blackstone 
speaks of the colonies as civil corporations, and therefore ab- 
solutely subject to the disposal of the crown. Hence the 
foundation of the assumed right to bind them in all things 
whatsoever. 

The main public questions that engaged the attention of 
the colonists among themselves concerned religion and taxa- 
tion. The situation and circumstances of the people, as I 
shall show hereafter, tended to overthrow religious intoler- 
ance* In matters of taxation they were true Englishmen ; 
they did not want to pay anything except by their own con- 
sent, and their poverty and inclination restricted its measure. 
Land was so cheap that nearly every colonist was a free- 
holder, and, what was important, he held his land in his own 
right, not as tenant of another. He was the monarch of his 
own acres. Take the world over, the man who owns the 
land that gives him his support acquires a sense of personal 
independence and dignity that rises to an exalted height. 

In the New England colonies education received early and 
marked attention. Harvard College was founded in 1636, 
Yale College in 1700. In Massachusetts, in 1647, every town- 
ship of fifty householders was required to establish a school 
where reading and writing should be taught, and in townships 
of one hundred householders a grammar school was required. 
In Connecticut, in 1673, it was enacted that every township 
which numbered fifty householders should forthwith appoint 
one within the town " to teach all such children as should re- 
sort to him to read and write ; whose wages shall be paid by 
the parents or masters of such children, or by the inhabitants 
in general." A printing press was established in Cambridge 
in 1639. 

In Virginia, however, education was at first neglected. In 
1671, Sir William Berkeley, who was long a governor of the 



RELIGIOUS LIBERTY. 27 

colony, in a report to the Lords Commissioners respecting 
religious and other instruction, wrote these words : " I thank 
God there are no free schools nor printing, and I hope we 
shall have none these hundred years ; for learning has brought 
disobedience and heresy and sects into the world, and printing 
has divulged them, and libels against the best government. 
God keep us from them both." But Sir William passed 
away, and schools and printing came. William and Mary's 
College was founded in 1691. The events which led to the 
Revolution stimulated the study of the law. Edmund Burke 
said in a speech in Parliament : " In no other country perhaps 
in the world is the law so general a study. The profession 
itself is numerous and powerful. . . . The greater number of 
deputies sent to Congress are lawyers. I have been told," he 
said, " by an eminent bookseller, that in no branch of his busi- 
ness, after tracts of popular devotion, were so many books ex- 
ported to the colonies, as those of the law." 

The love of liberty, which had been nurtured and developed 
in the town meetings in New England, had its counterpart 
among the slave-holders of Virginia and the Carolinas. Said 
Mr. Burke in the English Parliament: " They have avast 
number of slaves. Where this is the case in any part of the 
world, those who are free are by far the most proud and 
jealous of their freedom. These people of the southern colo- 
nies are much more strongly, and with a higher and more stub- 
born spirit, attached to liberty, than those to the northward." 

Religious liberty and toleration had so marked an influence 
upon our civil liberty that we may well pause for a moment, 
and glance at some of the causes of their growth and diffusion. 

The colonies were the home of multitudes who had been per- 
secuted for the sake of their faith. If persecuting bigotry 
threatened the exiled zealot in one colony, a sympathizing or 
tolerant community either welcomed or endured his presence 
in another. Christian Europe, during the century that pre- 
ceded the landing of the Pilgrims, had many a sad field of 
religious persecution. 

The dominant church had satisfied or subdued the Christian 
mind for many centuries. When Protestant liberty came with 
the Reformation, the established order tried to crush it out. 



28 CONSTITUTIONAL HISTORY. 

Temporal swords clashed : on the old side, to purge the new- 
heresy ; on the new side, to defend its right to exist and make 
the field for existence wider. The logical result of the denial 
of the supremacy of the ancient church was to give to every 
man liberty of religious faith and worship. The further re- 
sult was that Protestantism disintegrated into numerous and 
sometimes hostile sects. 

A remarkable series of events led to the Established Church 
in England. It is not strange that the generations which 
dared to rebel against the spiritual dominion of the Pope, 
which the Christian world for fourteen centuries had attested, 
should deny or dissent from the spiritual dominion of a church 
of which Henry VIII. was the founder and head. Nor is it 
strange that persecution should follow that dissent. 

The government felt constrained to make good its position 
and pretensions. Prudence required both the old church and 
the new to sort out friends from enemies. On either side 
articles of faith were of serious import. The heretic or dis- 
senter in either camp was an enemy. Recantation was ex- 
acted, or punishment inflicted. To the magistrate, this alter- 
native was a proper police regulation ; to the fanatic, an 
obligation due to true religion. But the human mind, once 
set free, could not be restrained by temporal power. If liberty 
of conscience was denied at home, energy and zeal would find 
an asylum abroad. The Brownists, who followed John Robin- 
son to Holland, and afterwards set foot on Plymouth Rock, had 
the same right to establish new creeds and forms of worship 
as had Henry VIII. The new continent offered its wilderness 
to these devoted people, and to all others who, in that age of 
spiritual unrest, could not conform to authority, or abide its 
persecutions. 

Religious liberty in the new world could not long thrive 
without civil liberty. Each is inseparable from the other- 
Without religious liberty, civil liberty does not exist ; and 
without civil liberty, religious liberty has no sure protection. 

In Virginia the Church of England was established by law 
and favored by the people. But Bancroft says : " Virginia 
was the first state in the world, composed of separate boroughs 
diffused over an extensive surface, where representation was 



KELIGIOUS LIBERTY. 29 

organized on the principle of universal suffrage." It is plain 
that universal suffrage and religious intolerance are incom- 
patible. The man who has the right to vote as he pleases 
already has liberty of faith and conscience. 

The Pilgrim fathers, including the settlers of Massachusetts 
Bay with those of the Plymouth colony, came here, not to es- 
tablish religious liberty in general, but for liberty to enjoy 
their own particular religion. They illustrated by their action 
that though they had fled from the persecution of intolerant 
power, they felt it their duty when they attained power to 
visit the like persecution upon those who did not conform to 
their standard of faith and worship. Their charter did not 
confer upon them liberty to establish their dissenting church 
as the church of their new state, but they made bold to assume 
and exercise the liberty. They meant to enjoy their liberty, 
and they did, even to the extent of punishing those who sought 
to exercise the like measure of liberty in a different faith. 

Indeed, that must be an exquisite liberty which the zealot 
enjoys, who, having fled the rack and the fagot in one conti- 
nent, can command them in another. The intolerance in 
Massachusetts was mitigated in 1691 by the charter of Wil- 
liam and Mary. It provided that there should be " a liberty 
of conscience allowed in the worship of God to all Christians 
except Papists," as the Protestants of those days designated 
the Roman Catholics. England had, with the accession of these 
sovereigns, become more tolerant. The celebrated Toleration 
Act of William and Mary repealed all former statutes im- 
posing penalties upon Protestant dissenters for nonconformity 
to the ritual and discipline of the Established Church. Its in- 
fluence was felt in the colonies. Still the Congregational 
Church long continued to be the state church in both Massa- 
chusetts and Connecticut, and none but church members could 
be admitted as freemen. But the Congregational Church was 
democratic in its government, and hence a training-school in 
the ways of self-government. In Connecticut the Quakers, 
Ranters, Adamites, and "other notorious heretics" were by 
law excluded from the colony. 

Massachusetts persecuted the Quakers, and so the Quakers 
followed Roger Williams — a graduate of Oxford, and a 



30 CONSTITUTIONAL HISTORY. 

preacher of religious liberty far too advanced for the age — to 
Rhode Island, not to establish religious liberty, but to enjoy 
in freedom their own religion. Under the lead of Williams, 
Rhode Island became the refuge of the wanderers who were 
persecuted either for their faith, or for the lack of it. As 
every one wanted to be let alone in matters of conscience, 
mutual toleration was the best expedient. The Rhode Island 
people petitioned the king for a charter, and sent Williams to 
procure it. In their petition they recite "that it is much 
in their hearts, (if they be permitted,) to hold forth a lively 
experiment that a most flourishing civil state may stand, and 
be best maintained, and that among our English subjects with 
full liberty in religious concernments." The king granted the 
charter. It recites that " no person within the said colony 
at any time hereafter shall be any wise molested, punished, 
disquieted, or called in question, for any difference in opinion 
in matters of religion." This covers the whole ground. What 
the Massachusetts people thought of their neighbors in Rhode 
Island we may infer from the words of Cotton Mather, written 
in 1665 : "Rhode Island colony," he says, "was a colluvies 
of Antinomians, Familists, Anabaptists, Antisabbatarians, Ar- 
minians, Socinians, Quakers, Ranters, and everything but 
Roman Catholics and good Christians ; bona terra, mala gens" 
Nevertheless, we find it recorded that in 1688 an inhabitant 
of Rhode Island was fined by the Quarter Sessions for plant- 
ing a peach-tree on Sunday. And Neal, their historian, says 
that they all read the Scriptures, from the least to the great- 
est, but they would not pay anything for the benefit of hire- 
lings, as they called the preachers. 

In Maryland, the charter granted to Lord Baltimore provided 
that the Church of England should be established. But Lord 
Baltimore was himself a Catholic, and so were his principal 
followers. Lord Baltimore therefore protected the Catholics 
and could not oppress the Church of England people, for if he 
had, they would have complained to the king. Hence reli- 
gious toleration became a necessity. In 1691 the proprietary 
government was superseded by a provincial government. 
The Catholics were then denied liberty of worship. But in 
1714 the proprietary government was restored and the Catho- 
lics resumed their liberty. 



RELIGIOUS ' LIBERTY. 31 

In the Carolinas the Church of England was established by 
the charter drawn by the celebrated John Locke, the great 
expounder, in an age of the divine right of kings, of the prin- 
ciple that governments derive their just powers from the con- 
sent of the governed. But his charter is subject to the re- 
proach that it is the most monarchical of any inflicted upon 
an American colony. Still the charter in this respect was of 
small force. Good government is rarely invented, but is the 
result of natural and healthy growth. It should fit the peo- 
ple in a natural way, as the bark of a tree fits its trunk and 
branches in every stage of development. You cannot take 
bark from one pile and lumber from another and make a tree. 
Locke's constitutions fitted neither place nor people. They 
would not work, and the people put them aside and made 
what little government they wanted until 1720, when provin- 
cial governments were formed for both Carolinas. Among 
the people were Huguenots from France, German Protestants 
from the Palatinate, Moravians, Swiss, and Scotch, with ad- 
venturers without any religion from most of the other colo- 
nies. Out of such a medley of people there had to be toler- 
ation — partly, also, if a recent writer says true — because 
nobody cared a groat for theology or religion. Most of the 
South Carolina settlers had left their homes in Europe upon 
account of matters connected with religion. About one half 
were Scotch Highlanders, Protestants from the north of Ire- 
land, some Germans, many Huguenots, and the other half 
Englishmen. The Church of England was established by law, 
but the great bulk of the population were Presbyterians, op- 
posed to the Established Church, and toleration ensued as a 
compromise between the force of the law and the stronger 
force of the facts. 

In 1692 an act was passed giving freedom of worship to 
all Christians " except Papists." The Scotch-Irish Presby- 
terians, says Bancroft, were the first to advise the colonies to 
dissolve connection with Great Britain. North Carolina was 
the first colony to give an explicit vote for it. 

In the province of New York, the Dutch settlers mostly 
favored the Reformed Protestant Dutch Church. One of the 
best evidences of religious toleration is that the English con- 



32 CONSTITUTIONAL HISTORY/. 

quest of the colony in nowise superseded it. The early com- 
missions of the English governors provided that no one 
should preach in the provinces unless licensed by the Bishop 
of London, or by the governor. In 1707, Francis Makemie, 
a Presbyterian clergyman, violated this regulation and was 
brought before the governor, to whom he boldly replied : 
" Your instructions are no law to me." He was brought to 
trial before the chief justice, who charged the jury that the 
question was doubtful, and the jury acquitted him. The 
effort to make the Church of England the established church 
of the province resulted in a failure. An act of the colonial 
legislature in 1695 authorized the vestrymen and church war- 
dens of the English Church to call a dissenting minister, if 
they were so minded. No wonder the exasperated governor 
told the legislature, " You seem to take the whole power in 
your hands and set up for everything." 

To William Penn is to be credited a clear and broad enun- 
ciation of religious liberty. In his frame of government for 
the colony of Pennsylvania, he declared, " that all persons 
acknowledging one Almighty God, and living peaceably, shall 
be in no ways molested for their religious persuasion or prac- 
tice in matters of faith or worship, or compelled to frequent or 
maintain any religious worship, place, or ministry." 

In New Jersey, liberty of conscience was first conceded to 
all persons, but was afterwards denied to the " Papists." The 
Swedes and Dutch settled Delaware, and do not appear to 
have had or caused any religious troubles. In Georgia, the 
" Papists " were refused toleration ; all other Christian sects 
were encouraged. 

Thus the variety of religious sects, the liberality of the 
charters, the spirit of the people, and their peculiar condi- 
tions combined to make the colonies the home of religious 
liberty, and thus helped to bring about our constitutional 
liberty. They who freely debate respecting the ordinances 
of God do not lack the spirit or freedom to challenge those of 
men. Complete liberty and toleration, however, were legally 
wrought out after the Declaration of Independence. The 
necessity of union and the declaration of equality of rights 
completed the emancipation of the human mind. 



CAUSES LEADING TO THE REVOLUTION. 33 

Mr. Burke, speaking in the British Parliament, enumerated 
six causes of what he characterized as u the fierce spirit of lib- 
erty " in the colonies : English descent ; liberal forms of gov- 
ernment ; the religion of the provinces of Massachusetts and 
Connecticut, which he said was the Protestantism of Protes- 
tantism ; the manners in the southern provinces, resulting 
from slavery ; education ; distance from England. To these 
may be added : Equality of condition, direct ownership of 
land, and scarcity of money, which compelled the colonists to 
investigate the authority for taxation, and to provide against 
its abuse. 

Something too may be credited to the influence of the wil- 
derness. In those vast solitudes freedom was everywhere, 
and tyranny could not enter. Man might not think of lib- 
erty, but he could not help enjoying it. He was uncon- 
sciously educated to regard it as a natural condition. 

The immediate cause of the Revolution was the attempt of 
Great Britain to tax the colonies according to the pleasure of 
Parliament, irrespective of any denial of that right on their 
part. This attempt by Parliament was the assertion of its 
right to interfere with and take away any of the rights and 
privileges secured to the colonies by their charters. 

Originally the difficulty took the form of a dispute between 
Great Britain and the colonies, not upon the right, but upon 
the mode, of obtaining a small revenue from them. The right 
was at first conceded, but the mode was disputed. England 
had incurred a large debt in maintaining war against France, 
partly for the defence of the American colonies, and the 
Chancellor of the Exchequer thought the colonies ought to 
contribute something towards its satisfaction. In 1764 he 
proposed, and Parliament imposed, certain duties upon va- 
rious articles of foreign produce imported into the colonies, 
and upon a few articles exported by the colonies to countries 
other than Great Britain. It was also resolved that it might 
be proper to charge certain stamp duties in the colonies. It 
was not thought expedient to impose the charge of stamp 
duties immediately, but to confer with the agent of the colo- 
nies and ascertain if any other form of tax would suit them 
better. The English government supposed it was treating 



34 CONSTITUTIONAL HISTORY. 

the colonies with great condescension, and was greatly aston- 
ished at the vehemence with which the colonies exclaimed 
against the stamp law. This they did without proposing any 
substitute for it. The following year the stamp tax was im- 
posed. It received the most vehement resistance, and was 
the occasion of many alarming riots in the colonies. Nine 
colonies convened a general congress in New York. The 
congress remonstrated against the tax, and made a declara- 
tion of the rights and duties of the people as English sub- 
jects. The other colonies concurred. This was the " Stamp 
Act Congress." The colonists would not use the stamps, and 
they compelled the officers charged with their sale to resign. 
The English government was amazed and alarmed, and caused 
an inquiry to be made into colonial affairs. 

Benjamin Franklin was the resident agent in London for 
Pennsylvania, and he was examined as a witness. His testi- 
mony reflected the sentiments expressed by the general con- 
gress in New York. He represented that the temper of the 
colonists, until the Stamp Act was passed, was the best in the 
world ; they considered themselves part of the British em- 
pire, and were ready and willing to support it as far as their 
little power went ; they had always been ready to tax them- 
selves and were ready now; they had assemblies of their 
own ; these assemblies were ready and willing to impose such 
taxes upon their people for the benefit of the crown as were 
suitable to their circumstances and abilities, whenever they 
were called upon in a constitutional manner ; the English 
Parliament might properly impose the import and export 
duties, for such duties were within its rightful power to reg- 
ulate commerce. England guarded the sea, and these duties 
were a proper charge for the expense ; but the stamp duties 
were internal taxes which could not be levied upon any Eng- 
lish people except by their own representatives, and the colo- 
nies had no representation in Parliament, but did have in 
their own assemblies. Franklin's attention was called to the 
fact, that in the charter of Pennsylvania it was provided 
that the king would levy no taxes unless with the consent of 
the Colonial Assembly, or by an act of Parliament ; to this 
he answered that Parliament had never exercised the power, 



TAXATION WITHOUT REPRESENTATION. 35 

and the people therefore understood that it never would, un- 
less it first admitted their representatives. Colonial repre- 
sentation in Parliament was impracticable, but the colonists 
would tax themselves if requested. He strongly represented 
that the people were so poor that they did not have specie 
money enough to pay for the stamps. 

We thus have an idea of the colonial mind in 1765, tee 
years before Lexington and Bunker Hill. The cause of com- 
plaint does not appear to have been actually great. Greater 
cause seems to have existed in the oppressive character of the 
acts restraining trade, manufactures, and navigation, the valid- 
ity of which the colonists long admitted. But the complaint 
illustrates the colonial disposition to meet threatened danger 
before it became firmly established. Notwithstanding the 
riots and resistance to the stamp tax, the English government 
was willing to repeal the act, with, however, the declaration, 
salve to its pride, that the Parliament had the right to tax 
America. In 1766 such an act was passed. The repeal and 
the declaration went together. But when the bill was in- 
troduced, party strife ran high in Parliament. Mr. Pitt, 
afterwards Lord Chatham, was then in the opposition, and 
seizing upon the position advanced by the colonists, that, 
without representation, Parliament could not legally impose 
taxation, he made one of his great speeches in its support. 
That speech, though it failed to convince Parliament, and 
perhaps was unsound, convinced the colonists. The repeal of 
the Stamp Act confirmed their convictions . 

The excitement which the stamp act caused, and the uni- 
versal discussion of the right of Parliament to tax America, 
led to a retraction by the colonists of the concession of the 
right to impose import and export duties. lu 1767 Parlia- 
ment passed an act providing for the imposition of certain 
duties upon tea, glass, and paper, and one or two other arti- 
cles imported into the colonies. These duties were in part 
counterbalanced by a reduction of some other duties previ- 
ously imposed. A portion of the money thus to be raised 
was to be spent in America, but a portion was to be paid 
into his Majesty's exchequer to defray the expenses of de- 
fending, protecting, and securing the colonies, — a provision 



36 CONSTITUTIONAL HISTORY. 

which the colonists feared meant coercion. Although these 
were import duties, their exaction aroused the indignation of 
the colonies and provoked their resistance. Resolutions were 
adopted not to use the articles, and the custom-house officers 
in Boston were badly beaten. » 

The issue was thus sharply made, whether Great Britain 
did indeed have the right to tax America. While it is plain 
to see that if the right was conceded by the colonists, it im- 
plied a concession that was, theoretically at least, fatal to 
their liberties, for, as was said, the right to tax a penny im- 
plied the right to tax a pound, yet the surrender of the right 
was the surrender of the controlling supremacy of England. 
Mr. Burke said in Parliament: "It is the weight of the pre- 
amble, not of the duty, that the Americans are unable to 
bear." The colonists were greatly encouraged by the sup- 
port given to their claims by advocates in England, even in 
the ministry itself. But George the Third was king, and he 
exercised a power in his own government to which the 
queen at the present day is a stranger. He was inflexible in 
his demand that his rebellious subjects in America should 
obey, if they did not respect, the authority of the home gov- 
ernment. It is not necessary to follow in detail the succes- 
sive steps which culminated in open rebellion. All conces- 
sions in taxation which reserved the right to impose the 
taxes were scouted at. The king insisted, and the colonies 
resisted. 

The colonists stated the law of the case substantially in 
this way : We are Englishmen ; we have the rights of Eng- 
lish subjects. It is the fundamental law of England that no 
tax can be laid upon the people except by their consent, to 
be given by their representatives in Parliament. We in 
America are not represented there ; therefore our consent 
cannot be given there. We are represented here in our own 
assemblies, and here only can our consent be given, and there- 
fore here only can we be taxed. Hence, what supplies we 
furnish the king must be our free gift ; our gift through our 
commons to our king. We came here and remained here 
upon the pledges of liberty secured to us by our charters. 
These charters secure to us the privileges which every Eng- 



FIRST CONGRESS. 37 

lishman holds as his birthright, extended and regulated to 
conform to our needs in a distant colony. To take them 
away is the breach of compact, the wrongful act of a tyrant. 
Moreover, England, they finally began to argue, is only one 
and an equal part of the whole kingdom, and therefore has no 
right to give the laws to the other parts. 

In 1773, Parliament in imposing a duty upon tea to be im- 
ported into the colonies by the East India Company explicitly 
declared " that the colonies and plantations in America have 
been, are, and of right ought to be, subordinate to and de- 
pendent upon the imperial crown and Parliament of Great 
Britain ; " and that the king, by and with the consent of 
Parliament, " had, hath, and of right ought to have, full 
power and authority to make laws and statutes ... to bind 
the colonies in all cases whatsoever." 

And now the colonial freeholder, feeling the independence 
that came to him with the ownership of his freehold, and edu- 
cated by long discussion to believe that taxes were the gift of 
the people, not the right of the king, was ready to dispute this 
imperial assertion of power. He was less a freeholder and a 
freeman, if the king and Parliament, three thousand miles 
away, could, at their own pleasure, place a mortgage upon his 
farm and its products in the form of a tax. And the free- 
holder was right. 

But England had delayed too long this bold assertion of 
its power " to bind the colonies in all cases whatsoever." By 
the neglect of the crown the people had grown in strength, 
and in the knowledge that they possessed it. The war with 
France had been an instructive experience. The peace of 
Paris in 1762 ended the French dominion in Canada, and on 
the Ohio River, and left the colonies without a hostile neigh- 
bor. It is probable that England lost her colonies south of 
the Canadian frontier because she gained those of the French 
north of it. The colonies did resist the pretensions of Great 
Britain, and the Revolution came on. 

This resistance brought the colonies together. Franklin, in 
1773, suggested that they hold a general congress, and refuse 
to grant aid to England until their rights were admitted and 
better defined. The " Sons of Liberty " of New York were the 



38 CONSTITUTIONAL HISTORY. 

first to send an invitation to all the colonies to come together. 
Massachusetts named the time and place. They came to- 
gether, not to make a common government, but to concert 
measures to secure redress of grievances. It was on the 5th 
day of September, 1774, that a number of delegates, chosen 
and appointed by the separate colonies, met at Carpenter's 
Hall, in the city of Philadelphia. A mob had thrown over- 
board in Boston harbor a cargo of tea, upon which the British 
Parliament had imposed a tax or duty. Other circumstances 
had happened which convinced Parliament that Massachusetts 
was rebellious and needed discipline. In March, 1774, Par- 
liament passed three bills : one for closing the harbor of Bos- 
ton, and suspending its trade during the pleasure of the king ; 
the second, that the king should appoint the provincial coun- 
cil, that the royal governor might appoint and remove judges 
and sheriffs at his pleasure, and that no town meetings should 
assemble without the royal governor's license ; and the third 
was, that if any person should be indicted for murder in aid- 
ing the magistracy, he might be sent to Great Britain for 
trial. 1 I am not going to dwell upon these or other acts of 
the English government. It was plain that if these things 
could be done, more could be done. If in Massachusetts, 
then in every other colony. All the colonies naturally were 
alarmed. Hence the first Congress at Philadelphia. It did 
not adopt any very decided measures. It brought the colo- 
nies together. It provided for meeting again. It familiar- 
ized the people with the fact of concerted action, and with 
the idea that in union there is strength. It was the first of 
an endless succession of congresses, and thus a great fact in 
our constitutional history. 

There were fifty-five members ; they sat with closed doors ; 

1 The third bill was enacted because it was supposed that the royal magis- 
tracy, to be created under the second bill, might in their efforts to suppress sedi- 
tion find it expedient to order that the offenders be shot down. If any should be 
killed those who fired upon them might be indicted for murder and be convicted, 
notwithstanding the fact that the royal sheriffs mentioned in the second bill 
would have the selection of the persons composing the juries. Hence the gov- 
ernor might send the indicted persons to Great Britain where by means of " a 
mock trial " — denounced in the Declaration of Independence — they would be 
protected from the fate which it was feared would befall them if they should be 
tried at home. 



LEXINGTON AND CONCORD. 39 

they talked over tlieir grievances, but they did not talk of in- 
dependence or of arms. They talked rather of their rights 
under the crown, and how under it, and with loyalty to it, 
they could secure redress of grievances. They drew up an 
address to the king, and asked him to repeal the obnoxious 
laws and not make any more. They recommended to the 
people of the colonies that while their grievances were unre- 
dressed, they should neither buy from, nor sell to, the people 
of Great Britain. Great faith they had in the coercive power 
of withholding trade. Our people had the same faith later, 
— under every administration from Washington to Madison. 
It proved to be a mistake every time it was tried. 

But this Congress recommended that another Congress 
should meet in May, 1775. It adjourned, and saw that the 
king did not heed its petition. The public temper did not 
compose itself. The British government in February, 1775, 
declared the province of Massachusetts to be in rebellion. No 
doubt it was. British troops were sent to Boston. They 
were not kindly received. The Massachusetts men began to 
arm themselves, here and there. It was on the morning of 
the 19th of April, 1775, that British troops fired upon some 
minute men at Lexington. They killed seven, and wounded 
nine. On the afternoon of the same day they met some vol- 
unteers and militia at Concord, and there followed a strag- 
gling fight all along the road from Concord to Boston. The 
British regulars rather got the worst of it. These were the 
battles of Lexington and Concord ; small affairs when com- 
pared with the great contests in which our arms have since 
been engaged, but in their momentous consequences very 
great. It is the first step that costs, and on that April 
day our fathers dared to take it, with all its eventful conse- 
quences. 

Samuel Adams was under the ban of the British govern- 
ment, and was hiding near Concord from arrest by its officers. 
His exclamation when he heard the roar of musketry was, 
" What a glorious morning is this." His prophetic sense 
took in the consequences. 

The 19th of April, 1775, is an important date in our con- 
stitutional history. The Constitution of the State of New 



40 CONSTITUTIONAL HISTORY. 

York declares that such parts of the common law and of the 
acts of the legislature of the colony of New York as together 
did form the law of the colony on that day, which have not 
since expired, been repealed or altered, still continue the law 
of the state, except as altered. It sometimes happens in our 
day that judges listen while lawyers enlighten them as to 
what part of the common and statute law of England was in 
force in the colony of New York on the 19th day of April, 
1775. 

The second Continental Congress met at Philadelphia, May 
10, 1775. The country had resolved to fight : for what ? For 
an independent government ? No ; only for a redress of griev- 
ances, and to resist and to expel the armed forces that had 
been sent over to coerce them into obedience to the royal 
authority. They hoped that a sharp and stubborn resistance 
would bring King George to reason. I suspect they hoped 
more from the division of parties in England than from any 
expectation of convincing the king and his government. Par- 
ties were divided over there, and it was not without some rea- 
son that our fathers hoped that their resistance here would so 
strengthen the hands of the opposition as to force their ene- 
mies out, and put their friends in power. Our fathers were 
angry, they were stubborn and rebellious, and they drifted 
on into war without daring to think just how the end would 
come about. They did not dare to speak of independence at 
the start ; the courage to do that came later, with harder 
blows, with hopes deferred, with new aggressions, with their 
bridges burned behind them, and the chance for safe and hon- 
orable retreat thrown away. 

This Continental Congress was no legal government. It 
had no authority, no troops, no money. It was a mere vol- 
untary association of delegates, sent from the several states 
for the purpose of consultation as to what it was best to do 
and advise. It was indebted to the courtesy of the carpen- 
ters of Philadelphia for the hall in which it met. Events 
pushed it on to the assumption of some authority. By com- 
mon consent Congress became the adviser of the people, the 
regulator of their angry patriotism. It resolved that the war 
should be by and on behalf of all the colonies. Massachu- 



WAR DECLARED. 41 

setts procured George Washington of Virginia to be appointed 
commander-in-chief of the American forces. Thus Massa- 
chusetts pushed Virginia to the front. Washington had had 
some experience in the French War — not much in high com- 
mand, for the provincial officer was thought fitter to obey a 
British officer than to take equal rank with him ; but the 
small opportunity Washington had had to command had been 
well used. Since the death of Sir William Johnson, who was 
the only American decorated by royal favor for services in 
the French War, Washington was probably regarded as the 
greatest among the living soldiers in America. It was good 
policy to appoint him. It made the war in Massachusetts 
a general war. Washington was the wealthiest man in the 
land, and the most conspicuous citizen of the most important 
colony. It was a step towards that United States that even 
then was the dream of multitudes, and a year later the openly 
announced object of the war. 

The sentiment in favor of independence soon found expres- 
sion. Perhaps questioningly and timidly at first, for the ex- 
pression was treason to Great Britain. It was not an idle or 
an easy matter then to resolve that the abuse of power ab- 
solved the subject from his allegiance to his king. How much 
that proposition was debated ; how the bold and angry as- 
serted, and the weak and cautious doubted and feared, we can 
form some idea from the literature of that day that has come 
down to us. A pamphlet of Tom Paine, entitled ''Common 
Sense," of which one hundred thousand copies were distrib- 
uted, was perhaps most influential. 

The battle of Bunker Hill was fought June 17, 1775. 
The provincial loss was four hundred and fifty men, killed, 
wounded, and missing, and the British one thousand. A week 
later, Congress put forth its declaration of war. " Our cause 
is just,"' it said, " our union is perfect, our internal resources 
are great, and, if necessary, foreign assistance is undoubtedly 
attainable. In defence of the freedom that is our birthright, 
we have taken up arms. We shall lay them down when hos- 
tilities shall cease on the part of our aggressors. We have 
not raised armies with the ambitious design of separating from 
Great Britain, and establishing independent states." 



42 CONSTITUTIONAL HISTORY. 

But the question of independence had to be met. By the 
war the royal governments were practically suspended in the 
several colonies. Some sort of government must be had. As 
early as November, 1775, New Hampshire asked the advice 
of Congress. The royal governor had fled the colony. Con- 
gress, after much hesitation, advised New Hampshire to call a 
" full and free representation of the people," and if on consul- 
tation it should seem necessary, then " to establish such form 
of government as in their judgment will best produce the 
happiness of the people, and most effectually secure peace 
and good order in the province, during the maintenance of 
the present dispute between Great Britain and the colonies." 
New Hampshire followed the advice, and on January 5, 1776, 
adopted the first state constitution formed by the people. 
It was not at all defiant. On the contrary, the Constitution 
recited the predicament which the "state" — not the " col- 
ony " — had fallen into, the advice of Congress, and then used 
these words : " Reduced to the necessity of providing some 
form of government to continue during the present unhappy 
and unnatural contest with Great Britain, protesting and de- 
claring that we never sought to throw off our dependence 
upon Great Britain, but felt ourselves happy under her pro- 
tection while we could enjoy our constitutional rights and 
privileges; and that we shall rejoice if such a reconciliation 
between us and our parent state can be effected as shall be 
approved by the Continental Congress, in whose prudence 
and wisdom we confide, we accordingly resolve," etc. 

Congress soon after gave similar advice to South Carolina 
and Virginia. The states of New Hampshire, South Caro- 
lina, Virginia, and New Jersey adopted state constitutions 
before the Declaration of Independence was declared. These 
colonies had provincial governments, always under governors 
appointed by the king. These governors were the first to 
find it unpleasant to stay. Pennsylvania took alarm at this 
dangerous assumption of power by " the people." It enjoined 
its delegates in the Continental Congress " to dissent from 
and utterly reject any proposition, should such be made, that 
may cause or lead to a separation from our mother country, 
or a change of the form of this government." 



DECLARATION OF INDEPENDENCE. 43 

Governor Franklin of New Jersey, the loyalist son of the 
patriotic Benjamin, complained, in his message, of essays in 
the newspapers favorable to the "horrid measure" of inde- 
pendence. He never became reconciled, was arrested and 
banished from the state, and betook himself to England. 

By the 4th of July, 1776, Congress had so far advanced as 
to be ripe for the Declaration of Independence. By that 
declaration and its ratification by the several colonies the 
royal government passed away. That fact is not debatable ; 
but what sort of national government took its place has been 
much debated since. The declaration recites that " these 
united colonies are, and of right ought to be, free and inde- 
pendent states." It does not say that the separate colonies 
are free and independent states, and hence the argument 
against state sovereignty and state independence, union of 
the colonies being the condition of independence, and " one 
people " the result. Nor does it say that these united colo- 
nies are a free and independent state, and hence the argu- 
ment that the colonies were not consolidated into one state, 
and therefore they obtained freedom and independence in 
their separate condition ; that all together guaranteed to 
every one separately that that one should be independent, 
and hence every one became independent, and no consolidated 
state was formed out of all. 

This may seem to be mere verbiage, and perhaps it is, but 
around it has centred much passionate disputation. 

The thought in the mind of the framers no doubt was that 
every colony was free and independent of the king. There 
was no need to say independent of each other ; they had al- 
ways been so, and the idea of erecting a common central gov- 
ernment out of all, and over all, was a problem for the future. 

The first duty of the states, made free and independent, was 
to provide a proper state government. New Hampshire, 
South Carolina, Virginia, and New Jersey, as we have seen, 
had been obliged to do this in advance of the Declaration. 

Connecticut and Rhode Island found that their royal char- 
ters were as good constitutions as they desired, and all they 
needed to do to change their government and their allegiance 
was to pull down the royal and hoist the people's flag. The 



44 CONSTITUTIONAL HISTORY. 

province of New York had been under English rale one hun- 
dred and twelve years, and many of these years had been 
filled with contentions between the roj^al government and the 
assemblies chosen by the people. The people claimed, and 
finally gained, the right to have the sole power of the appro- 
priation of money, and consequently of taxation, without dic- 
tation or amendment on the part of the royal governor and 
his council. If they did not like a royal governor or judge 
they would not pay his salary. 

Practically, the people of the colony of New York had 
nearly as free institutions in 1776 as they have to-day. They 
were thoroughly alarmed by the declaration of the English 
Parliament that the king with its consent " had the right to 
bind the colonies in all cases whatsoever." 

It was on the 9th day of July, 1776, that the Declaration 
of Independence was read and ratified by the " Provincial 
Congress of the colony of New York." This was not the 
assembly of the colony, but a sort of rebel congress convened 
at the request of an executive council appointed by the peo- 
ple. This council was assembled " to deliberate upon, and 
from time to time to direct, such measures as may be expe- 
dient for our common safety ; " it was in fact the government 
of the people in displacement of the royal government. On 
the 10th of July this Congress changed its title to the " Con- 
vention of the representatives of the State of New York." 
The people in New York were divided into parties. There 
were parties of peace, of action, and of union, but the par- 
ties of action and union became one, with large accessions 
from the party of peace. This state convention, it is inter- 
esting to notice, moved about considerably, the delegates 
probably consulting their personal safety. At one time we 
read of them at White Plains, then at Harlem, at Fishkill, 
and finally at Kingston, where on the 20th day of April, 
1777, the first Constitution of the State of New York was 
adopted. John Jay, afterwards Chief Justice of the United 
States, was the principal draftsman of the instrument, and 
it is not too much to say that it was a good piece of work. 
We find a curious record of the convention at Fishkill. It 
met in the Episcopal church, which, says the record, " being 



DECLARATION OF INDEPENDENCE. 45 

foul with the dung of doves and fowls, without any benches, 
seats, or conveniences of any kind, the convention adjourned 
to the Dutch church." The palatial apartments of the repre- 
sentatives of the people in the capital at Albany contrast 
strikingly with this hencoop at Fishkill, and the contrast illus- 
trates the growth of the state. 

The states of Pennsylvania, Delaware, Maryland, and North 
Carolina adopted their constitutions in 1776, Georgia in 1777, 
and Massachusetts in 1780. These constitutions were very 
much alike. They were copied largely from their colonial 
charters, except that election by the people was substituted 
for appointment by the king or his governor. The executive, 
legislative, and judicial departments were continued. These 
departments existed in Great Britain, and in the several col- 
onies, and there was no reason why they should be less ser- 
viceable under popular than under monarchical governments. 
Of course, there was some modification which experience had 
suggested. There was usually a full bill of rights, founded in 
great part upon Magna Charta, and the Bill of Rights of Eng- 
lish subjects as declared upon the accession of William and 
Mary in 1688, with additions suggested by the Declaration of 
Independence. The colonists had in vain contended that an 
act of Parliament against Magna Charta was void, and they 
therefore were explicit in defining the rights of the people 
which their own governments must not invade. Valuable 
as these constitutions were, they were quickly and easily writ- 
ten. They were adaptations, not inventions. 

It is a mistake to suppose that our fathers took up arms 
against actual oppression. It was oppression threatened and 
feared, rather than executed and felt, which they rose to re- 
sist. They met it at the threshold and strangled it there. 
An examination of the array of alleged " facts submitted to 
a candid world," in the imposing rhetoric of the Declaration 
of Independence, will disclose the truth to be, that it is the 
threatened assumption of power by the king that forms the 
chief burden of the formidable indictment against him. Our 
fathers were striving to retain their liberties, not to resume 
them. Instead of throwing off the yoke of King George, they 
refused to put it on. 



LECTURE III. 

Necessity for a National Government. — The Articles of 
Confederation. — Failure of the System. — Events leading 
to the Constitutional Convention. — The Convention. — 
How the Constitution was formed. — Debates and Compro- 
mises. — Completion of the Constitution. 

We have seen that it was comparatively easy for the colo- 
nies to change their colonial into state governments. 

But there was to be wrought out under the necessity and 
pressure of the circumstances of their war with the mother 
country, and the burdens and duties which the war would en- 
tail, a common government for the common defence and the 
general good of all the states. This was the new problem 
which the American people were destined to solve. The states 
themselves must be protected against the common enemy, and 
possibly against each other. It is this elaboration of the gen- 
eral government which resulted in 1787 in framing, and in 
1788 in adopting, the Constitution of the United States, that 
forms the most interesting and instructive portion of our con- 
stitutional history. It took the twelve years from 1776 to 
1788 to bring it all about. The first step was the meeting of 
the Continental Congress. Practically, this accomplished the 
union of the colonies for the purpose of carrying on the war. 
The second step was the Declaration of Independence. This 
affirmed the union of the colonies in their renunciation of alle- 
giance to Great Britain. The third step was in the efforts of 
Congress to provide efficient measures, in which all the states 
should take part, to prosecute the war, and resulted in the 
Articles of Confederation. The fourth step was the adoption 
of the Constitution. The Articles of Confederation were of 
themselves the first written Constitution of the United States. 
Their importance will justify our attention to their history 
and character. 



ARTICLES OF CONFEDERATION. 47 

The necessity of an organized union of the colonies into one 
common power, adequate to command the resources of the 
whole in the conflict with Great Britain, was obvious from the 
first. But it was not obvious that the creation of one state out 
of all the people, and commanding them all, of its own right 
and power, was the best method. It was plain enough, how- 
ever, to a few. Thomas Paine, in " Common Sense," in Jan- 
uary, 1776, said : " Let a continental conference be held to 
frame a continental charter." Many wise friends of the cause 
repeated, and from time to time renewed, the suggestion. But 
a continental charter or constitution for one continental state 
or nation was to await the teachings of experience and the pres- 
sure of calamities. An association or confederation of the states, 
in which each state should pledge itself to comply with the 
request of the committee or congress of the whole, was thought 
to be either a sufficient or the only practicable expedient. 

In June, 1776, a committee was appointed by the Continental 
Congress to prepare and digest the form of confederacy to be 
entered into between the colonies. This was before the Dec- 
laration of Independence was adopted. The committee in 
July did report a plan, and Congress debated, and considered, 
and waited, until a year from the then next November, before 
it actually agreed upon the plan, in the form of Articles of 
Confederation, to be submitted to the several states for adop- 
tion. The method of adoption proposed was that each state 
should instruct its delegates in Congress to subscribe the same 
in behalf of the state. Congress sent out a circular letter to 
each state. That letter probably tells the truth about the 
difficulties in the way, as clearly as they can be stated. It 
recites that — 

"To form a permanent union, accommodated to the opinions and 
wishes of the delegates of so many states, differing in habits, produce, 
commerce, and internal police, was found to be a work which nothing 
but time and reflection, conspiring with a disposition to conciliate, 
could mature and accomplish. Hardly is it to be expected that any 
plan, in the variety of provisions essential to our union, should 
exactly correspond with the maxims and political views of every par- 
ticular state. Let it be remarked that after the most careful inquiry, 
and the fullest information, this is proposed as the best which could 



48 CONSTITUTIONAL HISTORY. 

be adapted to the circumstances of all, and as that alone which af- 
fords any tolerable prospect of general ratification. Permit us then 
earnestly to recommend these articles to the immediate and dispas- 
sionate attention of the legislatures of the respective states. . . . Let 
them be examined with a liberality becoming brethren and fellow- 
citizens, surrounded by the same imminent dangers, contending for 
the same illustrious prize, and deeply interested in being forever 
bound and connected together, by ties the most intimate and indis- 
soluble. And finally let them be adjusted with the temper and mag- 
nanimity of wise and patriotic legislators, who, while they are con- 
cerned for the prosperity of their own immediate circle, are capable 
of rising superior to local attachments, when they are incompatible 
with the safety, happiness, and glory of the general confederacy." 

When the Articles of Confederation were submitted for 
adoption, many objections were stated by the "different states, 
and many amendments proposed. " It is observable," says 
Mr. Madison in the 38th number of " The Federalist," " that 
among the numerous objections and amendments suggested by 
the several states, not one is found which alludes to the great 
and radical error which on actual trial has discovered itself." 
That error was, the confederacy did not itself execute its re- 
solves, but requested the states to execute them. But Con- 
gress did not deem it wise to accept any of the modifications 
suggested. The states were intensely jealous of any central 
power or headship over themselves, and, had not the pressure 
and danger of the war been upon them, they would not have 
adopted these articles. All the states, except Delaware and 
Maryland, ratified them in 1778 ; Delaware in 1779, and 
Maryland not until March, 1781. One of the causes of delay 
was a controversy between the states in regard to the public 
lands which the crown had held, and the states now claimed. 
The states which had the least land, or whose boundary claims 
were doubtful, felt that the whole ought to be devoted to the 
United States to provide a fund to pay the expense of the war. 

Five of the seven years of the war had passed before this 
Constitution was adopted. What authority had Congress in 
the mean time? None whatever, except what was implied 
from the consent of the states or of the people. The Congress 
was in fact the only central government that existed, and its 



ARTICLES OF CONFEDERATION. 49 

powers to bind the whole rested upon the unwritten constitu- 
tion, which rested upon the implied consent of the people. 
Success ratified the assumption of power. The Supreme Court 
afterwards held that this Congress had sovereign and supreme 
powers for national purposes. 1 In governments, as in almost 
every other affair, if there is a disposition to pull all together, 
it does not make much difference where or how one takes 
hold ; where there is a will there is a way ; a familiar maxim 

— not always true, but it is the fundamental one of nearly 
every revolutionary movement, as history abundantly teaches. 

The Articles of Confederation should be examined with 
reference to the union which they established ; the form of 
government created, the powers conferred, and the powers 
omitted. 

It would be well to remember, for the sake of its bearing 
upon the Constitution subsequently adopted, that the parties to 
these " Articles " were, in name at least, not the people of the 
states, but the states themselves. 

The instrument was styled " Articles of Confederation and 
perpetual Union between the States," and the whole body was 
called " The United States of America." Each state retained 
its sovereignty, freedom, power, jurisdiction, and right, not ex- 
pressly delegated to the United States in Congress assembled. 
The union was described as " a firm league of friendship " be- 
tween the states, for their common defence, the security of 
their liberties, and their mutual and general welfare ; each 
state bound itself to assist every other against all assaults or 
force, offered on account of religion, sovereignty, or under any 
pretence. The free inhabitants of each state were to have all 
the privileges of free citizens in the several states ; trade and 
intercourse were to be free, fugitives from justice should be 
given up, and full faith should be given in each state to the 
records, acts, and judicial proceedings of every other state. 

The powers of government were vested in general Congress 

— this was of a single house. This body exercised all the 
executive, legislative, and judicial powers granted to the United 
States. Each state chose its own delegates in its own way 
and maintained them at its own expense. It might have 

1 Penhallow v. Doane, 3 Dallas, 54. 
■i 



50 CONSTITUTIONAL HISTORY. 

seven, but could not have less than two, delegates. Each state 
had one vote. No delegate could hold any office under the 
United States. 

This government could declare war and establish peace ; 
send and receive ambassadors ; make treaties and alliances, 
but could make no treaty of commerce which should prevent 
a state from imposing such duties on foreigners as its own 
people were subjected to, or which should prohibit any expor- 
tation or importation. It could deal with captures or prizes 
made by land or sea ; grant letters of marque or reprisal in 
times of peace, and establish courts to try piracies and felonies 
committed at sea, and determine appeals in cases of capture. 

It could settle disputes between states, controversies con- 
cerning land titles, where two states had granted the same 
land. 

It could coin money and regulate the value of coin, but it 
is interesting to note that it never coined anything but cop- 
per cents. It could establish weights and measures, regulate 
Indian affairs, establish post-offices, appoint officers other 
than regimental in the army, and govern and regulate both 
army and navy ; it could ascertain and appropriate the sums 
necessary for the public service, build and equip a navy, bor- 
row money, and emit bills on the credit of the United States, 
make requisitions upon each state for its quota of troops ; but 
each state was to enlist its own quota of troops, equip, arm, 
and clothe them, at the expense of the United States. It 
took the votes of nine states to do most of these things. 

All charges of war or for the general welfare were to be 
paid out of the United States treasury, but the United States 
could not raise a dollar by tax, impost, or duty. It could 
only ask the states to raise this money. The commerce of 
the country was left to each state, and each state could levy 
what duty it chose on foreign imports. There was no power 
in the United States to enforce its requisitions. Congress 
could make a treaty, but could not compel a state to observe 
it. It could issue bills of credit, but could not command the 
money to pay them. 

In all governments it will be found that the power over 
the purse is the greatest of all powers. Given that, and al- 
most every other efficient power conferred will follow. 



DEFECTS OF THE CONFEDERACY. 51 

The confederation, lacking this power, lacked the essential 
requisite of efficiency. The Congress under this government 
had no power to act upon the people. It could only request 
the states to act. This would have been very well, if all the 
states had been always willing and prompt to act as re- 
quested. But they were not. Sometimes one state would 
wait for another, and sometimes a state would dispute the 
justice or equality of the requisition made upon it, and would 
not obey it at all. Of course in the time of war the general 
government always wanted money, and wanted more than it 
was easy for the states to pay. This scheme of government 
was based upon the proposition that Congress should request, 
and then the states would perform. Under our present Con- 
stitution the United States, instead of asking a state to act, acts 
directly upon the people itself through its own laws and offi- 
cers. If it wants to raise money, it can impose the tax, and 
send its own collectors to gather it in. It imposes duties 
upon imported goods, or upon whiskey and tobacco, and col- 
lects them itself. The confederation could not do this. If 
the United States now wants troops, it raises them. The 
confederation could not do this. Congress was the only gov- 
erning body. Now we have the executive, judicial, and legis- 
lative departments. The pressure of the war, however, and 
the common feeling among the people that Congress must be 
sustained, helped this government through the war. It prob- 
ably could have gone on till its close without any declared 
form of central government. The states and the people were 
willing to take the advice of Congress and obey it, perhaps 
more readily before the Articles of Confederation than after. 

But when the war was over, and its great burden of debt 
pressed upon the states, the confederated government practi- 
cally broke down. It was pretty nearly a failure from the 
start, so far as vigor and efficiency were concerned. 

Still the Articles of Confederation had many good fea- 
tures, some of which are preserved in our present Constitu- 
tion. 

The Articles were the intermediate step connecting the 
Declaration of Independence with the Constitution. We are 
apt to disparage them because of their many imperfections. 



52 CONSTITUTIONAL HISTORY. 

This is a piece of historical injustice. Because it took two 
steps instead of one to reach success, the first step should not 
be disparaged. The Articles of Confederation certainly have 
the merit of being the first elaboration of the details by 
which the functions of the separate powers of the several 
states were consolidated into one national power. 

Conceive the difficulty of doing this. I have spoken of 
the facilities which existed to promote the easy formation of 
the state constitutions ; but to take from each state just that 
measure of its power which it might safely yield, and add to 
it the like measure from every other state, and therefrom 
construct the system of central power, which should always 
be helpful to all the states, and never injurious to any, and 
which should act for all when such action is needful, and tres- 
pass upon none, and which, withal, should be strong, dignified, 
and able, as it presents its unity to the world, and be respect- 
ing, respected, and just with regard to every state at home, 
is a problem more easily proposed than solved. It is easy 
enough to state broad, general principles of justice and lib- 
erty, and formulate them into glittering sentences. But to 
elaborate the details by which such generalities shall be 
made to do their perfect work is an intellectual and con- 
structive labor, bearing about the same relation to the former 
as the invention of a steam-engine bears to the description 
of it. 

It is easy enough to declare that every man is the equal 
in right of every other man ; that governments are for the 
benefit of the governed ; that the consent of the people is 
the foundation of authority. Such declarations had become 
threadbare before our Declaration of Independence was writ- 
ten. Liberty has been the aspiration of the human race al- 
ways. But authority has crushed it out. All through the 
ages the hand of the governor has been heavy upon the gov- 
erned. 

The people of modern times are working out this system of 
representation of the people. They hope to make it -the reg- 
ulator of authority and the preserver of liberty. The Ameri- 
can people have carried it further than any other. By it they 
seek to establish and maintain government for the benefit of 



WEAKNESS OF THE CONFEDERACY. 53 

the governed. Now by the Articles of Confederation a long 
step was taken in the direction of success. The end sought 
was known to be good ; the methods adopted were found to 
be bad ; but the tests of experience were fertile in suggestions 
of remedies. 

The Articles of Confederation brought the states into close 
relations, opened up trade and intercourse with each other, 
and forbade the passage of hostile trade laws. The citizen of 
one state was not an alien and stranger when he went into 
a neighboring state. The general Congress could negotiate 
peace with Great Britain, free from the vexations which must 
have existed, if every state had been obliged to do it sepa- 
rately. Consider the difficulty, if Great Britain had made 
peace with Massachusetts and Pennsjdvania, and not with 
New York. The war that had been waged against the com- 
mon enemy might have been changed to a war among the 
states, with Great Britain as the ally of some and the enemy 
of others. 

xJThe treaty of peace was at last signed on the 3d day of 
September, 1783, and the independence of the United States 
was established. The new government had now before it 
the perils of a peace establishment. The United States gov- 
ernment had contracted a debt of about $42,000,000, which 
it was in honor bound to pay. The several states had con- 
tracted state debts amounting in the aggregate to about 
126,000,000. The country came out of the war very poor, 
so poor, indeed, that the revolutionary soldier was discharged 
practically unpaid. He had nominal pay for only three 
months, and this was in scrip worth two and sixpence for 
twenty shillings. 

With the accession of peace the weakness of the confed- 
eracy was painfully exhibited. The first duty of Congress 
was to provide some pay for its discharged soldiers. The 
states would not all respond in full. It was necessary to pro- 
vide for the payment of the public debt, or to apportion it 
among the states, to make such uniform regulations of com- 
merce as would be just to all the states, and to discriminate 
among foreign states by extending or denying to them the 
privileges they extended or denied to us. It was desirable to 



( 



54 CONSTITUTIONAL HISTORY. 

make provision for selling the public lands, and colonizing 
them; also to provide a uniform currency throughout all the 
states, and hence to prohibit any state from issuing paper 
money. It was important that contracts should be enforced, 
and hence to prohibit any state from passing laws to impair 
them. Above all, it was important to keep the faith pledged 
in the treaties with foreign nations. Congress could accom- 
plish nothing except by the consent of the states. During 
the war, the states had conspicuously failed to respond to the 
requisitions of Congress. With the peace, matters became 
much worse. 

In 1780, delegates from four New England states and from 
New York assembled at Hartford, and recommended to all 
the states and to Congress to provide, by taxes or duties, an 
inalienable revenue to discharge the public debt, and to em- 
power Congress to apportion taxes on the states according to 
the number of inhabitants. But the plan failed. An at- 
tempt was made, in 1782, to amend the Articles of Confedera- 
tion so as to give the power to Congress to levy and collect 
duties upon imported goods. Had it been adopted, it is 
probable the confederacy would have been so strengthened 
that a new constitution would have been long delayed, if not 
altogether abandoned. A judicious scale of import duties, 
and a proper provision for the sale of the public lands, prob- 
ably would have kept the confederacy on its feet, if no do- 
mestic dissensions had intervened. But the amendment 
needed the assent of every state, and Rhode Island refused. 
Newport, the chief commercial city of that state, was then a 
port of the first importance. Rhode Island thus replied to 
the request of Congress : — 

" First, the proposed duty would be unequal in its opera- 
tion ; bearing hardest upon the most commercial states, and 
so would press peculiarly hard upon that state which derives 
its chief support from commerce. 

" Second, the recommendation proposes to introduce into 
that, and the other states, officers unknown and unaccountable 
to them, and so is against the constitution of the state. 

" Third, that by granting to Congress a power to collect 
moneys from the commerce of these states, indefinitely as to 



WEAKNESS OF THE CONFEDERACY. 55 

time and quantity, and for the expenditure of which they 
would not be accountable to the states, they would become 
independent of their constituents, and so the proposed impost 
is repugnant to the liberty of the United States." 

Rhode Island had the power by force of her position to sell 
her taxed goods to the people of other states, or compel them 
to pay duties to her if they imported goods through her port. 
Her objection to a central power appointing revenue officers, 
to eat out the substance of the people, was a favorite objection 
in other states. The same objection that they had to the taxes 
imposed by King George, they had to the imposition of them 
by any other power than their own. It was further objected 
that to lodge both purse and sword in Congress would be a 
fatal mistake. 

While Congress had some hope of inducing Rhode Island 
to abandon her objections, Virginia withdrew her assent to 
the proposed amendment to the Articles of Confederation. 
As early as 1779, Virginia had protested that " she was 
greatly alarmed at the assumption of power lately exercised 
by Congress." fin A pril, 1783, Congress adopted a resolution 
recommending to the states to give Congress the power to 
levy duties upon all imported goods for twenty-five years, for 
the sole purpose of paying the public debt, to be collected by 
officers chosen by the states but removable by Congress. The 
proposed measure failed for want of the unanimous consent 
of the states. From 1782 to 1786, requisitions of Congress, 
aggregating more than six millions of dollars, yielded about 
one million. 

The difficulties which Congress experienced in procuring 
the states to comply with its requests so discouraged it that 
it finally became difficult to obtain the necessary attendance 
of its members. The agent of France, having repaired to 
Trenton in 1784, in expectation of the assembling of Con- 
gress, found no quorum there, and after waiting some days 
reported, " There is in America no general government, 
neither Congress, nor president, nor head of any one admin- 
istrative department/^ 

There is no doubt that the condition of the states from the 
close of the war in 1783 until after the adoption of the Con- 



56 CONSTITUTIONAL HISTORY. 

stitution was much worse than it had been at any time in the 
colonial period. The policy of Great Britain was, by hostile 
navigation and commercial regulations, to teach our people 
the difference between their condition while dependent upon 
her, and their condition when exposed to her resentment. 
With the return of peace the American merchants, tempted 
by the low price of foreign goods, ran in debt for more goods 
in one year than the exports of the country could pay for in 
three, even if there had been no unfriendly discrimination 
against our exports in British ports. But there was. The 
whale fisheries of Massachusetts had formerly brought in 
$800,000 in specie every year from foreign ports. Now 
whale oil was excluded from British ports by a tax of $90 
per ton. Trade with the British West Indies was restricted ; 
no ships, no rice, tobacco, pitch, or turpentine could be sent 
there, as before the war. The cheapness of foreign goods 
discouraged American manufacturers. Pennsylvania, in lj[&5, 
passed a bill to protect the manufacturers of that state, by 
imposing duties upon more than seventy different imported 
articles, and by imposing a tonnage duty upon ships of foreign 
nations having no treaty with Congress. But of what use 
was it for Pennsylvania to try to protect herself, unless all the 
other states would do the same ? It was plain to that state, 
as to some others, that there could be no real relief until Con- 
gress should have power to regulate commerce. The legisla- 
ture of that state so represented to Congress in 1785. 

In May, 1785, the town of Boston caused the following 
entry to be made upon its record : " Peace has not brought 
back prosperity ; foreigners monopolize our commerce ; the 
American carrying trade and the American finances are 
threatened with annihilation ; the government should en- 
courage agriculture, protect manufactures, and establish a 
public revenue ; the confederacy is inadequate to its pur- 
poses ; Congress should be invested with power competent to 
the wants of the country." The legislature of that state 
passed a resolution to the same effect^ Massachusetts, New 
Hampshire, and Rhode Island severally passed acts of retalia- 
tion upon Great Britain, forbidding exports from their har- 
bors in British ships, and taxing the tonnage of incoming 



GENERAL DISTRESS. 57 

foreign ships. These acts were declared to be temporary 
expedients, " until a well guarded power to regulate trade 
should be intrusted to Congress." To the cries of distress 
from the states, with regard to their foreign trade, Congress 
gave some attention. /But the Congress of peace became even 
more feeble than theTpainfully feeble Congress of war. It 
was divided in its views upon the wisdom of intrusting to the 
central government absolute and unlimited power over the 
regulation of commerce. I The five southern " staple states," 
as they were called, had no ships or seamen, and why should 
they give the monopoly of the carrying trade to the eastern 
and northern states ? 

" The spirit of commerce," said R. H. Lee of Virginia, " is 
the spirit of avarice." Even the delegates from Massachu- 
setts receded from the position of their state, and were will- 
ing to give Congress only temporary control ; the cry went 
abroad that to give Congress more power was to create an 
aristocracy to dominate over the states. Congress sent John 
Adams and John Jay to England, to see if a better com- 
mercial plan could not be agreed upon. The answer of Eng- 
land in substance was : " You have as one people neither 
power, coherence, nor integrity enough to justify your preten- 
sion to treat with us. If we want to make any regulations 
we will make them with the states separately." France was 
more friendly in her dispositions, but politely intimated that 
in dealing with Congress she would bind herself, but did not 
feel sure that she would bind the states. 

Then, there was the added distress caused by paper money. 
Every state issued it. Its purchasing capacity varied from 
day to day. Nothing could be worse in its effect. Virginia 
was the first state honorably to extricate itself from this gross 
dishonesty. But of what use for one state to try to provide 
honest money, if the other states still clung to the dishonest ? 

But the growing distress led to the conclusion that the only 
escape from the calamity was to vest in the general govern- 
ment power over the currency, and to forbid every state to 
emit bills of credit, as their bad money was called, and forbid 
them to make anything but gold and silver a legal tender for 
the payment of debts. 



y^_ 



58 CONSTITUTIONAL HISTORY. 

Several of the states passed laws tending to impair the 
legal remedies necessary to make people pay their debts. As 
Grayson of Virginia put it, the Congress ought to have the 
power to prevent the people of the states from cheating each 
other, or as it was finally expressed in the Constitution, from 
" impairing the obligation of contracts." „ 

There were four causes which more powerfully than any 
others disclosed the utter weakness of the confederacy, which, 
after several years of distress, finally led to the formation of 
a new and stronger Constitution. First, the want of power 
to regulate commerce ; second, the want of power to raise 
money to pay the national debts and to support the national 
government both at home and abroad ; third, the want of 
power to provide a uniform and good currency ; fourth, the 
want of power to forbid a state to pass laws impairing the 
obligation of contracts. - — - — 

In addition to these wants there was a difficulty about the 
western lands. It was generally agreed that these ought to 
be sold for the benefit of the states, since all had united in the 
war which wrested them from the British power. Virginia, 
in 1784, helped pave the way to a more perfect union by 
ceding to the United States her territories northwest of the 
Ohio. New York had ceded her claims in 1781. 

The vast extent of the country was an obstacle. What 
could the citizens of New Hampshire and Georgia know of 
each other ? What roads there were, were bad, and the 
wilderness spread out from the rivers and sea-coast in vast 
and trackless expanses. The delegates from the distant 
states who came to the Congress at Philadelphia took weeks 
to perform the journey. Charles C. Pinckney of South Caro- 
lina felt moved to say in the Constitutional Convention, that 
he himself had prejudices against the people of the eastern 
states before he came there, but would acknowledge that he 
had found them as liberal and candid as any men whatever. 

It seemed in 1785, and the beginning of 1786, that the 
public apathy, the dissensions in Congress, the selfishness of 
the states, were obstacles too formidable to be overcome. 
Washington, who had been the leading advocate of such 
amendments to the Articles of Confederation as should give 



ACTION OF VIRGINIA. 59 

the confederacy the real power of a nation in its commercial, 
financial, and foreign affairs, began to be discouraged. New 
York, as early as 1782, had resolved " to propose to Congress 
to recommend, and to each state to adopt, the measure of 
assembling a general convention of the states, specially au- 
thorized to revise and amend the confederation." But in 
1785, the change in politics reversed the attitude of the state. 
She did not now favor any diminution of her state impor- 
tance, or of her growing revenue from import duties. 

Since the peace, Congress had been constantly begging the 
states to permit the confederacy to establish and collect du- 
ties upon imports. All the states, except New York, had 
confessed the propriety and wisdom of the request. New 
York insisted upon reserving these revenues to herself, but 
consented to pay her quota of the confederate charge. The 
attitude of New York was now fatal to the success of the 
national scheme. New York thus in effect taxed New Jer- 
sey, and New Jersey finally became so exasperated that she 
voted to pay no part of the last requisition of Congress until 
all the states should have accepted the measure of the federal 
impost for the benefit of the general treasury. This was 
secession, and seemed to end all. But meanwhile action had 
been taken by Virginia which caused New Jersey to recall 
her vote and await the march of events. 

Virginia opened the way out of the peril. It was done 
through the adroitness of James Madison. Virginia and 
Maryland had been negotiating together respecting their 
joint jurisdiction over navigation in the Chesapeake Bay and 
the Potomac River. Commissioners had agreed upon a plan 
which was laid before the legislature of each state. In De- 
cember, 1785, Maryland signified to Virginia her acceptance 
of the plan, and at the same time proposed that Delaware 
and Pennsylvania be invited to cooperate in a plan for a 
canal between the Chesapeake and Delaware rivers. Mary- 
land also proposed that all the states should be invited to 
meet and regulate the restrictions upon commerce. Madi- 
son, who was a member of the Virginia legislature, saw his 
opportunity. He drew a resolution for the appointment of 
commissioners, to meet such commissioners as should be ap- 



60 CONSTITUTIONAL HISTORY. 

pointed by the other states, " to take into consideration the 
trade of the United States, to examine the relative situation 
and trade of the said states ; to consider how far an uniform 
system in their commercial regulations may be necessary to 
their common interests and their permanent harmony ; and 
to report such an act to the several states relative to this 
great object as, when unanimously ratified by them, will en- 
able the United States in Congress assembled effectually to 
provide for the same." This* resolution he procured a Mr. 
Tyler, who was not suspected of wishing to give to the con- 
federacy overmuch power, to introduce. It was permitted to 
sleep until the last day of the session, when, to use a modern 
word, it was railroaded through. Madison was placed at the 
head of the commission. This resolution was sent to the 
other states and four of them responded. 

On the 11th of September, 1786, the commissioners of New 
York, New Jersey, Pennsylvania, Delaware, and Virginia met 
at Annapolis. 

A minority of states could not wisely do more than rec- 
ommend action. The commissioners therefore prepared a 
report to their respective states, and sent a copy of it to the 
other states, recommending a meeting of commissioners 
from all the states to be held at Philadelphia on the second 
Monday in May, 1787, " to take into consideration the United 
States, to devise such further provisions as shall appear to 
them necessary to render the Constitution of the Federal 
Government adequate to the exigencies of the Union." 

Congress, which, to use the words quoted by one of its 
members, had long halted over the question, " whether it is 
better to bear the ills we have, than fly to those we know not 
of," did not take it kindly that the subject was to be referred 
to a convention, and at first refused to indorse the recommen- 
dation, but after delegates from several states had been ap- 
pointed, did so with this qualification : " for the sole purpose 
of revising the Articles of Confederation " and reporting to 
Congress. Thus it confessed its jealousy of its power, and 
distrust of the wisdom of others. But thus indorsed, legal 
forms were observed, and all the states except Rhode Island 
appointed delegates. 



SHAYS' EEBELLION. 61 

Virginia was the first to act, and the name of Washington 
stood at the head of her list of delegates. He hesitated 
longer than was his habit before deciding to accept. Keenly 
as he felt the necessity of such action, he doubted whether 
the people were ready to consent to that delegation of power 
to the central government necessary to make it efficient and 
respected. He naturally disliked to impair his great fame by 
linking his name to a failure. He finally yielded to the 
wishes of others. His acceptance secured respect for the pro- 
posed convention. 

Meanwhile a rebellion broke out in the western part of 
Massachusetts, known in history as " Shays' rebellion." The 
rebels were people who owed money and could not pay it, or 
did not want to. The laws of the state authorized imprison- 
ment for debt. These debtors conceived that the laws, law- 
yers, courts, and judges were public enemies. They deter- 
mined to stop by force the holding of any more courts. They 
gathered in great numbers, bearing banners upon which were 
inscribed, in the language of the Declaration of Independence, 
the rights of the people, and the source of the authority of 
government. They did not cause much destruction. Indeed, 
they fled before, and finally surrendered to, the militia of the 
state, and order was restored. But they caused great con- 
sternation, not only in Massachusetts, but in other states. 
The foundations of government seemed imperilled when those 
who owed it obedience and enjoyed its protection rose, not to 
substitute a better, but to efface all government. It was felt 
that there ought to be a central power, able and ready to put 
down such a rebellion, in whatever state it might arise. It is 
difficult to appreciate at this day the extraordinary impulse 
that this Massachusetts mob gave to the movement for a bet- 
ter general government. 

The powers conferred by the several states were not uni- 
form. Virginia, Pennsylvania, and New Jersey appointed 
their delegates " for the purpose of revising the Federal Con- 
stitution ; " North Carolina, New Hampshire, Delaware, and 
Georgia " to decide upon the most effectual means to remove 
the defects of the Federal Union ; " New York, Massachusetts, 
and Connecticut " for the sole and express purpose of revising 



CONSTITUTIONAL HISTORY. 

the Articles of Confederation ; " South Carolina and Maryland 
" to render the Federal Constitution entirely adequate to the 
actual situation." Rhode Island held aloof. She was gov- 
erned by a class of men who wanted to pay their debts in 
paper money, and she did not wish to surrender her power to 
collect duties upon the goods that came into her port. The 
trade of Newport at that day surpassed that of New York. 
Connecticut came in reluctantly, and New Hampshire late in 
July, 1787. The convention was called to meet on the 2d 
day of May, 1787. Eleven days passed before the delegates 
from seven states — a majority — appeared. Then an organi- 
zation was effected, and Washington was made president of 
the convention. The delegates from some of the other states 
came in. 

The convention is justly noted for the ability and conserva- 
tive character of its members. Altogether there were fifty- 
five, more than half of them college graduates. Still many 
names great in the revolutionary struggle were absent from 
the roll of delegates. John and Samuel Adams, and John 
Hancock, were not there. Patrick Henry of Virginia refused 
to attend. Thomas Jefferson and John Jay were absent from 
the country. 

George Washington and Benjamin Franklin, however, were 
there. Washington was certainly the foremost in that honor 
and respect which came from great services rendered to his 
country. He was a lucid writer, though not a debater, not an 
educated man, scarcely a general reader, not quick in percep- 
tion, but in solidity of judgment, fairness of mind, dignity of 
character, and firmness of purpose, he was the ideal American. 
Take him all in all, alike what he was and was not, what 
he did and forbore to do, he is the greatest man in all our 
history. Franklin was then more than fourscore years of 
age. He was renowned throughout the civilized world as a 
great Utilitarian philosopher, a leader in experimental science, 
and an ornament of the human race. Indeed, he is the great- 
est man of the colonial age, and he would have been a great 
figure in the greatest age. Could he have been the companion 
of Solomon, Aristotle, and Bacon, he would have analyzed 
their wisdom and philosophy — universal expert as he was — 



CONSTITUTIONAL CONVENTION. 63 

and given them such suggestions as would have made them 
his debtors. There was some thought of making him presi- 
dent, but his physical strength was not equal to the position 
and he requested the appointment of Washington. Among 
the younger men was James Madison of Virginia, destined, 
after long service in behalf of his country, to become the fourth 
president of the United States. He was studious, modest, and 
thoughtful, and of exceeding wisdom in council. He had had 
an instructive experience in the Continental and Confederate 
Congresses. His influence in shaping the Constitution as it 
is was greater than that of any other man. He was the last 
survivor of that body, and a grateful country justly honors 
him as the " father of the Constitution." 

Alexander Hamilton came from New York. He was but 
thirty years of age, but for many years had been the adviser 
of Washington, and was already famous for his marvellous 
ability. He had a genius for the solution of governmental 
problems. In the keenness and grasp of his intellect, he had 
no superior in the convention, and many of his admirers thought 
he had no intellectual superior anywhere. But his influence 
in the convention was not very great, for the simple reason 
that he wanted to frame a stronger government than his as- 
sociates thought it wise to establish. He would give the gov- 
ernment stability and strength. He would have the executive 
and senate hold office for life. He distrusted a democracy. 
Wherever, he said, it had existed, and in whatever age, it was 
* a failure ; the vices of the people always came to the front, 
and the people were crushed by their own incapacity. 

Charles C. Pinckney was a delegate from South Carolina. 
His broad culture and liberal views gave him great weight in 
the convention. James Wilson of Pennsylvania was a Scotch- 
man. He surpassed all others in his exact knowledge of the 
civil and common law, and the law of nations. His zeal and 
wisdom were alike great. He was afterwards one of the jus- 
tices of the Supreme Court of the United States. Oliver 
Ellsworth and Roger Sherman came from Connecticut. They 
were wise men. But their usefulness was greater from the 
fact that they came from a state that had always been free, 
and been governed by the representative principle, whose 



64 CONSTITUTIONAL HISTORY. 

towns had always been, as they still are, pure democracies. It 
was in Connecticut, as early as 1639, that a constitution was 
written out as a complete form of civil order, embodying 
all the essential features of the constitutions of the American 
states as they now exist. It was the first of its kind in the 
new world. The state had the address to have its provisions , 
inserted in the charter of Charles II. twenty-four years later. 

Many of the fifty-five delegates shared Hamilton's contempt 
for a democracy, but the strength they would repose in a gov- 
ernment they preferred to retain in the states. They feared if 
they made the federal government a strong one, it would be a 
tyrant over the states, and as they had just escaped from one 
tyrant, they did not wish to create another. Sacrifice their 
states they would not, but they were willing to concede much 
for the general good, if they could see a safe way to do it. 

The first business of the convention was the adoption of 
rules. Each state was to have one vote. Such was the rule 
in the Confederate Congress. Seven states made a quorum. 
The convention was to sit with closed doors, and everything 
was to be kept secret : nothing was to be given to the public 
except the completed work. This injunction of secrecy was 
never removed. Fortunately James Madison kept a pretty 
full account of the debates and proceedings, all in his own 
hand. He lived nearly fifty years after the adoption of the 
Constitution, dying on the 28th day of June, 1836. After 
his death, the government paid his widow $30,000 for his 
manuscripts. These were published in 1840, are known as 
the " Madison Papers," and give to us the most authentic re- 
port extant of the debates of that body. 

It was expected that the State of Virginia would take the 
lead in the convention and outline some scheme for adoption. 
Accordingly, Edmund Randolph, the governor of the state, 
and one of her delegates, introduced in fifteen resolutions the 
plan submitted by that state. 

I make an instructive extract from his remarks upon the in- 
troduction of the resolutions : — 

" The confederacy was made in the infancy of the science of con- 
stitutions, when the inefficiency of requisitions was unknown ; when 
no commercial discord had arisen among states ; when no rebellion 



VIRGINIA TAKES THE LEAD. 65 

like that in Massachusetts had broken out ; when foreign debts were 
not urgent; when havoc of paper money had not been experienced; 
and when nothing better could have been conceded by states jealous 
of their own sovereignty. But it offered no security against foreign 
invasion, for Congress could neither prevent nor conduct a war, nor 
punish infractions of treaties, or of the law of nations, nor control 
particular states from provoking war. The federal government has 
no constitutional power to check a quarrel between separate states ; 
nor to suppress a rebellion in any one of them ; nor to counteract the 
commercial regulations of other nations ; nor to defend itself against 
encroachments of the states. From the manner in which it has been 
ratified in many of the states, it cannot be claimed to be paramount 
to the state constitutions, so that there is a prospect of anarchy from 
the inherent laxity of the government. As the remedy, the govern- 
ment to be established must have for its basis the republican prin- 
ciple." 

What did Governor Randolph mean by the "republican 
principle ? " He meant that the power to be vested in the 
government should come from the people, as distinguished 
from the states, and hence the government would act upon the 
people directly from its own authority and energy, instead of 
indirectly through the states ; that the government should act 
itself instead of requesting the states to act, and that the 
people who conferred power upon the states should in like 
manner confer it upon the general government ; that the 
general government should be a government of the people in 
like manner as the state was. If both the state and the gen- 
eral government should derive power from the people, then the 
one government would not be the creation of the other. 

Governor Randolph's remarks show that experience in gov- 
ernment was the great instructor of the convention. The plan 
presented by him contemplated the abandonment of the Ar- 
ticles of Confederation, and the adoption of a national Consti- 
tution, with executive, legislative, and judicial powers. Mr. 
Pinckney of South Carolina also presented a plan with fea- 
tures resembling our present Constitution. The discussion of 
Governor Randolph's plan provoked at the outset the impor- 
tant question : What had the convention authority to do, — to 
frame a new Constitution or amend the old ? The convention 

5 



66 CONSTITUTIONAL HISTORY. 

wisely determined to permit the previous discussion of all 
plans proposed, and thereby find out what plan the delegates 
were most likely to unite upon, and thus instructed, they would 
be better able to work it out. The discussion disclosed the 
general opinion to be that it did not much matter what the 
authority of the delegates was, since whatever they recom- 
mended would have to be approved by the people or by the 
several states before it could become obligatory, and therefore 
they had better present the best plan they could. The con- 
vention considered the resolutions of Governor Randolph in 
committee of the whole. A measure may be adopted in com- 
mittee, and rejected by the House. 

On the 13th of June, the chairman of the committee, as 
the result of the discussion, reported to the convention nine- 
teen resolutions ; the first was that a national government 
ought to be established, consisting of supreme legislative, 
judiciary, and executive departments. The second, third, 
fourth, seventh, and eighth resolutions provided that the leg- 
islature should have two branches, the numbers of both to be 
elected by the people of the several states, in numbers equal 
to their proportion of the whole number of all the people. 

The debate which followed soon disclosed a serious division 
of sentiment between the large states and the small. The 
large states favored a national, self-acting, central government, 
with a legislature of two branches, both to be chosen by the 
people in the several states proportionately to their respec- 
tive numbers. Thirty thousand people were assumed as the 
proper number for one representative in Congress. Taking 
this basis, and reckoning, as was proposed, five slaves as equal 
to three white men, Virginia would have ten ; Massachusetts, 
eight ; Pennsylvania, eight ; New York, six ; Maryland, six ; 
Connecticut, five ; North Carolina, five ; South Carolina, five ; 
New Jersey, four; Georgia, three; New Hampshire, three; 
Rhode Island, one ; Delaware, one. 

Thus it was seen and said that Virginia would be ten times 
greater and stronger than Rhode Island or Delaware. The 
small states objected to this reduction of their significance. 
When the vote was taken in committee, to which the subject 
was again referred, this national scheme, as it was called, was 



DIVISIONS IN THE CONVENTION. 67 

carried by a vote of six states to five. The six states were 
Virginia, Pennsylvania, Massachusetts, North Carolina, South 
Carolina, and Georgia. The five states were New York, New 
Jersey, Connecticut, Delaware, and Maryland. New Hamp- 
shire was still absent, and Rhode Island never was present. 

It is interesting to observe that New York voted with the 
smaller states, and that the two Carolinas and Georgia voted 
with the greater states. New York did not then foresee that 
in the race of progress she was so soon to pass from the fourth 
in rank to the first. 

North Carolina and Georgia were then great in extent. 
Their territories extended from the ocean to the Mississippi, 
and they confidently anticipated a greatness in the future far 
surpassing their northern sisters. Georgia was greater in ter- 
ritorial extent than the whole island of Great Britain. It 
seemed inevitable that these vast tracts of land, favored with 
a fertile soil and a genial climate, would become, not re- 
motely, the homes of a mighty people. 

South Carolina ceded her unoccupied western lands to the 
United States on the 8th day of August, 1787, while this con- 
vention was in session. 

The division was entirely natural. The larger states, with 
all their population, wealth, and industries, were unwilling 
to be placed on a par in the new government with the little 
ones. Should such a state as Virginia, ten times as great as 
Delaware, New Hampshire, or Rhode Island, be stripped of her 
power by their combinations, and compelled to obey as they 
might dictate ? In such a government as it was necessary to 
form, should not the representatives of the people be in pro- 
portion to the number of the people ? Should the inhabitants 
of Virginia be disfranchised as the penalty of their residing in 
that state ? They might as well be governed by Great Brit- 
ain as by a combination of little states. But the small states 
were equally in earnest. They said, Is not each a sovereign 
state, and can a sovereign state without humiliation enter 
into any agreement with another state, except upon terms 
of equality ? The moment she surrenders her equality of 
power, she throws away her rights and power to protect her- 
self. If representation is to be according to population 



68 CONSTITUTIONAL HISTORY. 

then the states are unequal in power ; the great states will 
make what laws they please, however injurious or disagree- 
able to the other states, and they will always prevent the 
small states from making any laws, however necessary and 
proper, if not agreeable to their views. 

Mr. Luther Martin, a delegate from Maryland, was very 
emphatic in his opposition. " It is," he said, " a system of 
slavery which binds, hand and foot, ten states in the Union, 
and places them at the mercy of the other three." A state- 
rights party began to exist. This party, under the lead of 
Mr. Paterson of New Jersey, asked and obtained time in 
which to mature a scheme of federal equality, as it was 
termed. They submitted a plan of amendment of the Arti- 
cles of Confederation so as to " render the federal Constitu- 
tion adequate to the exigencies of government and the pres- 
ervation of the Union." 

The leading features of this scheme were : Congress was to 
be given power to raise a revenue by levying and collecting 
duties on imports ; to regulate commerce ; to establish ap- 
pellate courts having jurisdiction in matters of revenue ; to 
pass laws to enforce obedience to the requisitions of Con- 
gress ; to elect a federal executive of several persons. 

The convention now had two schemes before it. The one 
was called the Virginia, the other the New Jersey plan ; the 
one a National, the other a Federal plan. One party pro- 
posed a new Constitution, the other proposed to amend the 
old. 

In the debates that followed, the central question was: 
Shall we have a government of the people, or a compact of 
the states ? The debates were earnest, able, animated, and 
not always free from threats of disruption and dissolution of 
the convention. Many delegates became alarmed. The aged 
Franklin was so apprehensive of the impossibility of agree- 
ment that, in order to tranquillize the minds of opposing del- 
egates, he proposed that a chaplain be appointed and prayers 
be read. It is stated in some histories that Franklin's sug- 
gestion was adopted. But Mr. Madison is authority for the 
statement that this is not true. He himself opposed, because 
he was afraid that if prayers were now read for the first time, 



DIFFERENCES COMPROMISED. 69 

the fact would alarm the country by the suggestion that the 
affairs of the convention were in a desperate strait. Other 
authority informs us that the reason why they did not engage 
a chaplain was because they had no money to pay him. 
Franklin soon after suggested a compromise of the opposing 
plans, and a committee was appointed to mature it. The 
committee agreed upon a compromise and the convention 
adopted it. 

The main features of the compromise were that in the 
Senate every state should have the same number of senators ; 
that in the House every state should be represented in pro- 
portion to its population. 

It was urged that thus the equality of the states in the one 
body, and the equality of people in the other, would be se- 
cured, and as both bodies must concur in the passage of a 
law, the states would be a check upon the people, and the 
people a check upon the states. It was well done. 

Independently of the question of the equality of the states, 
the question, whether the national Congress should be com- 
posed of two bodies or of one, was much discussed. Those 
who wished simply to amend the Articles of Confederation fa- 
vored one body. But in the end the argument in favor of 
two bodies prevailed. Two houses, it was said, were safer 
than one. 

The members of the lower house should be frequently 
chosen, the better to represent the people. But such a body 
would naturally lack experience, wisdom, stability, and dig- 
nity of character ; it would be swayed by popular prejudice 
and clamor ; it would be misled by demagogues ; it would be 
rash in its expedients and propositions, and liable to do great 
mischief, with possibly the best of motives. It would be in 
the highest degree useful as the representative of the people, 
but not entirely safe as their sole legislator. Moreover, the 
sense of the responsibility of the individual member would be 
dissipated among so large a number; and the wisdom of the 
few might be overborne by the passions, the prejudice, or the 
cupidity of the many. 

These suggestions were indeed weighty. Given, it was 
said, a second house, of fewer numbers, chosen not by the 



70 CONSTITUTIONAL HISTORY. 

people but by their wiser state legislators, and for longer 
terms, and the result is a smaller body of wise, able, experi- 
enced, and safe men. Such a body would moderate the im- 
petuosity and rashness of the popular branch, would detect 
and correct their folly, and approve their just resolves. Each 
body would be helpful to the other, and with both a very 
high degree of safety would be secured. 1 The argument is no 
doubt sound, and stands approved by the subsequent experi- 
ence in this country and in nearly every constitutional state 
in Europe. 

Mr. Hamilton, after the Constitution was adopted, pro- 
nounced it to be the chief maxim of the government to raise 
up departments whose interests and inclinations should be 
opposed to each other, so that if one, yielding to some peculiar 
pressure, might prove false or faithless to the interests of the 
nation or the liberties of the people, another, remaining inde- 
pendent or unmoved, might defend, maintain, and preserve 
them. 

There was also much discussion with respect to the choice, 
the personality, and the power of the executive. 

Should there be one president, or several ? Great fear was 
expressed lest one man, whether called president, governor, 
consul, or chief, would, if great care were not observed, de- 
velop into a king. " Unity in the executive office," said 
Randolph, " is the foetus of monarchy." 

The argument in favor of one man instead of several was, 
that with one there could be no dissension in council, no divi- 
sion in decision or action, no escape from responsibility. The 
argument was strong and it prevailed. How should he be 
chosen ? By the people, by the governors of the states, by 
their legislatures, by Congress, or by electors to be chosen as 
each state should appoint ? They decided that the President 

1 It is said that Washington and Jefferson once at supper discussed the wisdom 
of having two legislative chambers. Jefferson contended that one was enough, 
according to the plan then prevailing in France. Washington contended for 
two. In the course of the discussion, Jefferson poured out his hot tea from his 
cup into his saucer. " Why," said Washington, " do you do that ? " " To let 
the tea cool," said Jefferson. " Quite right," said Washington, " and just so 
we need two legislative chambers to give the judgments of legislators a chance 
to cool." 



THE EXECUTIVE OFFICE. 71 

was too important an officer to be chosen by tbe people. 
Sherman of Connecticut said, " The less the people had to do 
with the government, the better." Gerry of Massachusetts 
said, " All the evils we experience flow from an excess of 
democracy." Mason of Virginia and Wilson of Pennsyl- 
vania combatted these views. " Without the confidence of 
the people," said Wilson, "no government, least of all a re- 
publican government, can long endure." 

The South Carolina delegates thought that the people were 
so widely scattered that the fewer elections by them, the bet- 
ter. The New England States wanted elections often. To 
allow the states to choose a president would maintain all tbe 
states upon an equality. It was finally agreed that there 
should be a college of electors, chosen in each state in such 
manner as its legislature should direct, equal to the whole 
number of senators and representatives to which the state 
should be entitled in Congress ; and that these electors should 
choose the President. The idea, borrowed from the Consti- 
tution of Maryland, was that wise men, carefully chosen, 
would themselves exercise this important office with great 
care and wisdom. Our good fathers did not foresee that after 
all their expressed distrust of the people, this body of electors 
would not have the courage to disobey the voice of the people 
as previously expressed in their party conventions. It is not 
necessary to say that in practice the intention of the conven- 
tion is defeated. 

How long should the President hold office ? Hamilton 
urged, during good behavior, or for life. Some proposed one 
term, others another. It was at one time resolved that he 
should serve for seven years and be ineligible to reelection. 
Later, the term was changed to four years ; the clause declar- 
ing his re-ineligibility was dropped out upon the final revision, 
for reasons not disclosed. It is probable that the reason was 
that the convention supposed that Washington would be made 
President, and that it would be desirable to continue him in 
the office for life. 

A Vice-President was provided for, to act as President in 
case of a vacancy, or of the disability of the President. It 
was seen that his office would be a weary void, and to give 



72 CONSTITUTIONAL HISTORY. 

him some relief and excuse for existence, he was made Presi- 
dent of the Senate. 

The duties of the President were prescribed. As the first 
officer of the nation, it was agreed that he ought to be the 
commander-in-chief of the army and navy, but state-rights in- 
terposed and denied him the command of the militia, except 
when it was called into the actual service of the United States. 
He was permitted to make treaties by and with the advice 
and consent of the Senate, and could therefore make peace ; 
but he was not permitted to declare war, lest his ambition 
should lead the nation into useless wars. That power was 
vested in Congress. Vast and almost unlimited executive 
powers were conferred by the provisions, " The executive 
pow T er shall be vested in a President," and " he should take 
care that the laws be faithfully executed." He was authorized 
to convene Congress or either house upon extraordinary occa- 
sions ; and appoint, by and with the advice and consent of the 
Senate, certain officers of the United States. The Constitu- 
tion does not vest in the Senate any power with respect to 
the removal of these officers. That power, unless the law 
which creates the office otherwise provides, probably rests in 
the President alone. 

Various propositions were made to surround the President 
by an executive or privy council, or some sort of advisers. 
Mr. Madison proposed that he should have a council of six, 
two from the Eastern, two from the Middle, and two from 
the Southern States. Mr. Madison could not well take 
thought of that vast empire west of the Mississippi, over 
which the flags of Spain and France alternately waved, which 
he was to be permitted to see a part of the nation. The 
discussion ended in abandoning all these suggestions. The 
only expression in the Constitution authorizing a cabinet is, 
" the principal officer in each of the executive departments," 
whose opinion the President may require in writing. His 
independence of Congress and influence over legislation 
were provided for by giving him a qualified veto power. His 
fidelity was secured by his oath of office and liability to im- 
peachment. 

The federal Judiciary was the subject of the careful atten- 



JUDICIARY DEPARTMENT. 73 

tion of the very able lawyers of the convention. To make 
this department as independent as possible, it was agreed that 
the judges should hold office during good behavior. It was 
also agreed that it should not have any jurisdiction over cases 
arising in a state, between its citizens, in respect to matters 
wholly controlled by state laws. But it was agreed that the 
court should have jurisdiction over cases controlled by the 
laws of the United States, its Constitution, and treaties. And 
then it was seen that when a case arose between citizens of 
different states, the United States court would not be preju- 
diced by state influence against either suitor; that contro- 
versies might arise between states, which in the interests of 
peace ought to be fairly tried and decided ; that it might hap- 
pen that a state would sometimes sue a citizen of another or 
of a foreign state ; that the United States might become a 
party to a suit ; and that admiralty and maritime cases would 
spring from our shipping interests. In these cases it was 
agreed that the United States courts would be the proper 
tribunal. If a foreign ambassador or consul should be sued 
while he was accredited to the United States, the courtesy 
due him and his country made it fitting that he should not 
be required to answer except in the most exalted court of the 
nation. If a state should be a party, it would not be digni- 
fied for it to be cited by any inferior court. It was resolved 
to provide a Supreme Court and inferior courts. Out of com- 
pliment to states and the representatives of foreign countries, 
their cases should be tried, in the first instance, in the 
Supreme Court ; but all the other cases should be tried in the 
first instance before some one of the inferior courts. To the 
Supreme Court was given appellate jurisdiction. Now all 
this seems very simple. But in these simple regulations lies 
the most remarkable, the most admirable, and the most im- 
portant provision of the whole Constitution. Without it the 
system would no doubt have proved a failure. This appellate 
jurisdiction of the Supreme Court has, more than any other 
agency, composed dissensions, settled conflicting claims, and 
defined the powers by which the nation has developed into 
its stable greatness. Experience under the confederacy had 
taught the lesson that, whatever the powers vested in the 



74 CONSTITUTIONAL HISTORY. 

national government, they must be protected from the en- 
croachment of the states, otherwise they would be sooner or 
later destroyed. It was foreseen that, whatever guards might 
be written in the national Constitution to preserve the na- 
tional authority from state encroachment, the} 7 would prove 
worthless, unless some final and supreme power should be 
competent to declare all state infringement upon the national 
power void. 

Thus was presented a vital question of the utmost delicacy 
and difficulty. Suppose the states should enact laws in con- 
flict with the United States Constitution, and its laws and 
treaties; how could the difficulty and danger be overcome? 
The delegates were familiar with the theory that the crown, 
with respect to legislation, might interpose its veto ; and it 
was suggested that the like power ought to be vested in some 
department of the national government with respect to state 
laws in conflict with the United States Constitution, laws, or 
treaties. But the exercise of such a power would inevitably 
be the occasion of constant irritation to the states, and would 
imperil the whole system. Suppose state after state should 
pass such laws, and the United States should veto them, as 
it of necessity must, the states might make common cause 
against the United States and thus destroy the national gov- 
ernment. The problem was of the utmost gravity. Insep- 
arable from it was another problem equally momentous. 
Suppose the United States, notwithstanding its enumerated 
powers, should, in the plenitude of its strength and inordi- 
nate desire of centralization, assume to itself powers not dele- 
gated, and encroach upon the reserved powers of the states. 
What remedy would the states have, except resistance and 
rebellion ? The difficulty was at last happily solved by giv- 
ing the Supreme Court appellate jurisdiction, and thus mak- 
ing it the final arbiter. One section extended the judicial 
power to all cases in law and equity arising under the Consti- 
tution, and another declared, " This Constitution, and the laws 
of the United States which shall be made in pursuance there- 
of, and all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme law of 
the land ; and the judges in every state shall be bound there- 



SUPREMACY OF THE JUDICIARY. 75 

by, anything in the Constitution or laws of any state to the 
contrary notwithstanding." 

Under these happy provisions, whatever law any state may 
pass, no matter how much it conflicts with the Constitution of 
the United States, it may go upon the statute book of the state 
without exciting the least apprehension or alarm. There it 
will quietly repose until somebody seeks to assert or deny the 
right or duty which this law purports to confer or deny. The 
opposite party then challenges the state law as forbidden by 
the supreme law of the Constitution of the United States. 
An appeal is taken to the Supreme Court of the United States, 
and that court decides whether the state law is valid or void. 
If it decides that it is void, it is to all intents and purposes not 
merely practically repealed,but declared never to have existed. 

In like manner, if Congress enact any law in conflict with 
the Constitution of the United States, whether by violating 
the rights reserved to the states, or by exercising powers not 
conferred by the Constitution, the Supreme Court, whenever 
a case comes before it in which the question can be raised, de- 
clares the act of Congress void. It is true there are some 
cases of the appropriation of public moneys, and the exercise 
of powers by the general government, in which the Constitu- 
tion may be violated, and no individual be so injuriously af- 
fected as to have any proper cause to commence a lawsuit to 
test the question. In such cases the Supreme Court cannot 
interfere. The only protection against such abuses is either 
by amendment of the Constitution, or by an appeal to the 
people to defeat the reelection of the offenders. But we shall 
examine this subject more fully hereafter. 

The powers of the executive and judicial departments hav- 
ing been pretty definitely agreed upon, it remained to pre- 
scribe the powers which should be given to Congress, and to 
draw the lines as plainly as possible between the functions of 
the state and national governments. A resolution was adopted 
that power should be conferred upon Congress "to legislate 
for the general interests of the Union, for cases to which the 
states are separately incompetent, and for cases in which the 
harmony of the United States might be interrupted by the 
exercise of individual legislation." The convention tried to 



76 CONSTITUTIONAL HISTORY. 

work close to the lines thus laid down. " The general inter- 
ests of the Union," or as it was put in the Constitution, "gen- 
eral welfare," was always construed to mean that welfare 
" for which the states are separately incompetent " to provide, 
a signification which modern statesmen are not always able to 
appreciate ; otherwise they would not seek under the " general 
welfare " clause to meddle with matters for which every state 
is separately competent to make such provision for itself as it 
thinks proper. This construction the convention illustrated 
by carefully enumerating the powers delegated to Congress, 
and to the United States. Thus the great powers to declare 
war, to provide an army and navy, to coin and borrow money, 
to lay and collect taxes and duties, to acquire and protect a 
seat for the national capitol, to enact patent and copyright 
laws, to establish post-offices, to admit new states, to govern 
territories, to make uniform rules for naturalization and bank- 
ruptcy, and a uniform standard of weights and measures, to 
establish the courts of the United States, plainly concern the 
general welfare. They are powers for the proper exercise of 
which the states are separately incompetent. Then, there 
were duties which the United States were declared to owe to 
the states : thus, to guarantee to every state a republican form 
of government, and to protect it from invasion, and from such 
domestic violence as Shays' rebellion had threatened in Mas- 
sachusetts. 

The above cases in which power was expressly given to 
Congress were understood to be some of the cases in which 
" the harmony of the United States might be interrupted by 
the exercise of individual legislation ; " but there were others 
so obnoxious in themselves, or dangerous to the general wel- 
fare, that they were felt to demand express enumeration. The 
times had been fertile in suggestions of small confederations of 
states. The Eastern States, the Middle States, the Southern 
States, were by many supposed to be natural divisions, and to 
have so few interests in common with the other sections that 
three confederacies might be probable creations of the near 
future. There were also the people who had built their cabins 
beyond. the Alleghany Mountains, whose outlet to the sea was 
by way of the Mississippi River. It was feared that these 



CONVENTION HARD AT WORK. 77 

adventurous and fearless pioneers, cut off by the mountains 
from the Atlantic seaboard, might form their own confedera- 
tions, joining possibly with Spain, who held the mouth of the 
great river and barred the outlet to the Gulf. Hence it was 
provided that " no state shall enter into any treaty, alliance, 
or confederation." A few years later Aaron Burr was brought 
to trial for treason against the United States. The possibility 
of founding an empire, whose boundaries should embrace the 
vast water-shed which discharges its floods through the deltas 
of the Mississippi, charmed the imagination and tempted the 
ambition of this brilliant and active man. But he stopped 
short of levying war, and hence escaped conviction. 

The states were expressly forbidden to make any more 
paper money, or anything else but gold or silver, a legal ten- 
der ; to coin money, to emit bills of credit, or to pass any law 
impairing the obligation of contracts. Thus it was sought to 
promote the general welfare by cutting off this fruitful source 
of dishonesty. 

It was thought that possibly a state might, under peculiar 
circumstances, exercise, with the consent of Congress, some 
national powers ; and it was provided that, without such con- 
sent, no state should lay any duties upon imports or exports, 
except the trifle necessary to pay for their inspection, or lay 
any duty of tonnage, keep troops or ships of war in times of 
peace, engage in war unless actually invaded or in imminent 
danger of it, or, such was the repeated caution of the conven- 
tion, enter into any agreement or compact with another state 
or foreign power. 

It was regarded as settled law by the members of the con- 
vention that no powers could exist in the United States gov- 
ernment except those enumerated in the constitutional grant 
of powers, and those which it would be necessary to employ in 
order to carry out the enumerated powers. Hence it was that 
they refused to insert a bill of rights, any further than to say 
that the citizens of each state should be entitled to all the 
privileges and immunities of citizens in the several states. 
That is to say, when the citizen of New York should go to 
New Jersey, he should be entitled to just as fair treatment as 
if he were a citizen of New Jersey, and New Jersey could 



78 CONSTITUTIONAL HISTORY. 

make her bill of rights as full as she chose. But there were 
some powers which greatly excited the fears of some of the 
delegates, and it was thought prudent expressly to deny them 
to the United States. 

And so the power was expressly denied to suspend the privi- 
lege of the writ of habeas corpus except when the public safety 
should be endangered by rebellion or invasion ; to tax exports ; 
to give preference by any regulation of commerce or revenue 
to one port over another ; to prevent free commerce by vessels 
between states ; to draw any money from the treasury except 
under an appropriation made by law ; or to make any reli- 
gions test a qualification for office. Both state and nation were 
forbidden to pass any bill of attainder, or ex post facto law, or 
confer any title of nobility. 

Slavery was discussed. It was regarded as a state institu- 
tion, with which it was not expedient for the convention to 
interfere. Such interference would cause the Constitution to 
be rejected by the slave-holding states. The subject, however, 
came up in considering the question of enumerating the peo- 
ple of a state for the purposes of taxation and representation. 
Should the slaves be counted ? Yes, if people ; no, if prop- 
erty. There were but few slaves in the Northern States. In 
some states they had been set free, and in some others the 
process had begun. 

The northern sentiment was hostile to slavery on moral 
grounds, and especially hostile to the slave-trade; though 
northern men were not free from the reproach that they had 
shared in the business and profits of the trade. 

If the slave is property, said the northern delegates, you 
have no more right to count him, than we have to count our 
mules. If we allow you to count him, we encourage the 
further importation of slaves, which we want you to stop. 
The South replied ; we grant the slave is property, but five 
slaves can produce as much as three freemen, and are there- 
fore equal to three freemen in developing the national wealth. 
You must obtain national revenue by direct taxation ; you 
agree that taxation and representation must go together ; and 
if we count the slave for the purposes of representation, we 
thereby consent that he be counted for the purposes of taxa- 



POWERS CONFERRED AND DENIED. 79 

tion ; you thus will get the benefit of our counting him. We 
are willing to compromise the question on that basis. The 
compromise was accepted ; five slaves became the equal of 
three freemen for the purposes of representation and taxation. 
Whether the North yielded its conscientious scruples any 
more easily because of the supposed benefit of counting the 
slave for the purposes of taxation cannot be answered. If so, 
it was badly cheated ; for there never has been much resort to 
direct taxation. The duties upon imports, and the excises on 
whiskey and tobacco, and sometimes on other articles, have 
provided all the revenues. Direct taxation has been necessary 
in only a few cases, and then but for a very short time. 

That duties should be laid upon importations from foreign 
countries was conceded to be a power which ought to be 
vested in the United States and taken away from the states. 
Thus a national revenue would be provided, and the duties 
would be uniform in every port. The commercial states of 
the North thought they were making a great sacrifice in sur- 
rendering this privilege, and they urged that the like power 
to impose duties upon exports should also be vested in the gen- 
eral government. But the South was firm in its opposition 
to this proposition. The South was not a commercial people. 
It exported largely tobacco grown in Virginia and North Car- 
olina, and rice and indigo grown in the two Carolinas and 
Georgia. Cotton was scarcely known. The cotton gin and 
the power loom had not then been invented. Northern men 
were traders. Their merchant marine was known in almost 
every foreign port. The northern delegates pressed the ques- 
tion of duties upon exports. Our exports, said the two Caro- 
linas and Georgia, are our only means of getting any money. 
We must buy from you, and pay duties upon the goods your 
ships bring us from abroad. If you insist upon taxing our 
resources at both ends, both when we buy and sell, the busi- 
ness is at an end, we will stay out of the Union. But we con- 
sent that you tax imports — that tax falls upon the consumer. 
We and our slaves are consumers, and perhaps we shall con- 
sume more than you and thus pay more. The North was 
constrained to agree, and the result was that a tax might be 
imposed upon imports, but no tax could ever be imposed upon 
exports. 



80 CONSTITUTIONAL HISTORY. 

The power to regulate commerce with foreign nations was 
much discussed. It involved the power to pass laws to regu- 
late or exclude the entry of foreign ships into our ports. The 
North wanted to give the United States full power. As the 
South did not own ships, it could get no benefit from the 
regulations, and might be compelled to pay too high prices to 
the North on freights. But foreign countries had not dealt 
with the American traders liberally ; the British Orders in 
Council excluded our ships from the West India ports alto- 
gether. We must have the power of retaliation or we might 
be driven from the seas. The United States must have the 
power to make the regulations, and they must be uniform in 
all the states, in order that favorable treaties might be made. 
The South agreed to the justice of the proposed power, but 
wanted protection against its unjust application. 

The South finally proposed the provision that Congress 
might regulate commerce with foreign nations and among 
the states, but that it should take a two thirds vote to pass 
any navigation laws. Give us that protection and we are 
safe. Not so, said the North ; you may prevent us from get- 
ting the protection we need against foreign severity and in- 
justice. The question- of the importation of slaves arose, for 
that was involved in the regulation of commerce, and the lay- 
ing of duties. The North said slaves are imports and should 
be taxed as such. That will produce some revenue, and will 
tend to restrict the slave-trade. The South replied that the 
importation of slaves did not amount to much, and they 
would stop it themselves, for they would soon have all the 
slaves they wanted. The North pressed the tax upon slaves 
imported, and the restriction of their importation, with great 
firmness. The South thought that it had better concede 
something on the subject of navigation in order to escape 
pressure upon the slave question. And so another compro- 
mise was effected. Congress was given power to regulate 
commerce with foreign powers and among the states ; the 
two thirds vote was not insisted upon. The power to impose 
a tax of ten dollars upon every slave imported was conceded, 
and a provision inserted that Congress should not prohibit the 
importation of slaves prior to 1808. 



THE CONSTITUTION COMPLETED. 81 

It is proper to say that in 1808 Congress did pass a law- 
prohibiting the importation of slaves, but punishment for the 
violation of the law was not inflicted until the administration 
of Abraham Lincoln. No tax, however, was ever imposed 
upon any slave imported. 

No property qualification was required of any officer of the 
United States. Full faith should be given in each state to 
the public acts, records, and judicial proceedings of another. 
Provision was made for the surrender of criminals, and of 
fugitive slaves. Amendments to the Constitution were pro- 
vided for, but no amendment should deprive any state, with- 
out its consent, of its equal suffrage in the Senate. All the 
necessary details were perfected ; the several provisions care- 
fully expressed in plain and direct phrases, and arranged in 
suitable order. The revisers struck out the word " national " 
from the Constitution, lest it should cause the opposition or 
unnecessary fear of the too jealous champions of state-rights; 
the names of the several states were stricken from the pream- 
ble, and " The People " inserted instead, in order to signify 
that the power creating the Constitution came from the peo- 
ple, not from the states, and because all the states named 
might not ratify the Constitution. Provision was made for 
the ratification of the Constitution, not by Congress, not by 
the legislatures of the states, but by the conventions of at 
least nine states, thus again signifying the people as the 
source of power. 

Finally, on the 17th of September, 1787, the Constitution 
was completed. It was not satisfactory to all the delegates, 
and several refused to sign it. " Done in convention by the 
unanimous consent of the states present," is the language of 
the attestation clause, not by the unanimous consent of all 
the states, or of all the delegates. It was, however, signed 
by the large majority. President Washington was author- 
ized to transmit it to the Congress of the United States, with 
the recommendation that it be submitted for adoption to a 
convention of delegates, chosen by the people in every state. 
A letter was addressed to Congress, from which the following 
is an extract : "In all ouy deliberations we kept steadily in 
our view that which appears to us the greatest interest of 



82 CONSTITUTIONAL HISTORY. 

every true American, the consolidation of our Union. . . . 
And thus the Constitution which we now present is the 
result of a spirit of amity, and of that mutual deference and 
concession which the peculiarity of our political situation 
rendered indispensable." And thereupon the convention 
adjourned, leaving the Constitution to abide its fate at the 
hands of the conventions of delegates to be chosen by the 
people. 



LECTURE IV. 

The Ratification of the Constitution. — Proceedings in the 
Conventions of the Several States. 

The fate of the proposed Constitution remained doubtful 
for many months after the adjournment of the convention. 
Hamilton said it would be arrogance to conjecture the result. 
Madison, writing to Washington, said : " The majority in Vir- 
ginia will be very small on whichever side it may be. The 
business is in the most ticklish state that can be conjectured." 
Delaware was the first state to accept it. Gratified by the 
concession of equality in the federal Senate, the ratification 
was prompt, enthusiastic, and unanimous. Pennsylvania was 
the second. The opposition was sharp, but Franklin was 
president of the state, and Wilson a delegate to the state con- 
vention. Their influence was great. Wilson was the only 
delegate to the state convention who had also been a dele- 
gate to the Constitutional Convention. His great speeches in 
favor of the ratification of the Constitution are still quoted as 
aids to its exposition. The opposition was routed by bold 
and energetic measures, and the ratification was effected by a 
vote of forty-six to twenty-three. Then New Jersey and 
Georgia followed unanimously. Next came Connecticut by a 
vote of one hundred and twenty-eight to forty. 

The result in these five states was the more easily obtained 
because the friends of the Constitution were prompt to act. 
With delay in the other states came a bitterness of conten- 
tion which made the result doubtful. The first close strug- 
gle was in Massachusetts. The public creditor favored the 
proposed Constitution. He saw in it some hope of his long 
deferred pay. But the debtor class opposed it ; for it would 
put an end to cheap paper money, with which they hoped to 
pay their debts, when it became still cheaper. 

The merchants, manufacturers, lawyers, and clergy, and the 



84 CONSTITUTIONAL HISTORY. 

officers of the late continental army favored it. Massachu- 
setts had lately been the theatre of Shays' rebellion, of which 
mention has already been made. The insurgents had in- 
voked the language of the Declaration of Independence to 
justify their uprising. In the Constitutional Convention at 
Philadelphia this rebellion afforded frequent illustration of 
the alleged danger of giving power to the people. The sub- 
dued insurgents were opposed to the new Constitution, and 
although disfranchised by law, twenty of them were chosen 
delegates to the Massachusetts convention, and took their 
seats unchallenged, as the colleagues of John Hancock, Sam- 
uel Adams, Fisher Ames, and Rufus King. Hancock and 
Adams scarcely favored the Constitution. They feared that 
it infringed upon the rights of the people, and especially 
upon the rights of the states. Hancock was long governor 
of the state, and was especially tenacious of state rights and 
state dignity. 1 

The majority of the Massachusetts convention was clearly 
opposed to ratification. The discussion was long continued. 
Many objections were urged. The proposed Constitution did 
not say that the powers not conferred upon the United States 
were reserved to the states. It did not provide for a trial by 
jury in civil cases. It did not provide that a person must 
first be indicted before he could be convicted of crime. It 
recognized slavery and the slave-trade. It had no bill of 
rights. It opened the door to Papists. It required no profes- 
sion of religion as a qualification for office. Other objections 
were made. For a time it was supposed they would be fatal, 
but Hancock finally came forward as a mediator. He pro- 
posed that the Constitution be ratified, with an accompanying 
recommendation that it be amended in the particulars in 
which it was thought to be defective. His proposition was 
adopted, and the Constitution was ratified by a vote of one 
hundred and eighty-seven to one hundred and sixty-eight. 

1 Washington, during his first administration, made a tour into the Eastern 
States and visited Boston. Governor Hancock at first refused to call upon him. 
He said that he was the governor of an independent state, and Washington only 
the chief of a confederation of states, and as the inferior in rank the President 
should make the first call. However, he yielded to the better judgment of his 
friends, and finally consented to do Washington the honor of first calling upon 
him. s 



RATIFICATION IN THE STATES. 85 

Maryland next ratified the Constitution with much una- 
nimity, notwithstanding the strenuous opposition of Luther 
Martin. Mr. Martin, it will be remembered, was a delegate 
to the federal convention. His objections are preserved in 
the letter which he sent to the Maryland legislature. The 
letter is a most graphic and earnest denunciation of the main 
features of the Constitution. I quote its closing words as 
the interesting evidence of the earnestness of his convictions : 
" So destructive do I consider the proposed system to the 
happiness of my country, that I would cheerfully sacrifice that 
share of property with which Heaven has blessed a life of in- 
dustry, I would reduce myself to indigence and poverty ; and 
those who are dearer to me thau my own existence I would 
intrust to the care of that Providence who has so kindly pro- 
tected myself, if on those terms only I could procure my 
country to reject these chains which are forged for it." Mr. 
Martin was then about forty-two years of age, and it is 
pleasant to record that he lived under the new Constitution 
about forty years longer, and attained fulness of honor and 
distinction, without witnessing the calamities he foreboded. 

South Carolina followed next, and ratified the Constitution 
by a majority of seventy-six, but recommended amendments 
substantially like those of Massachusetts. South Carolina 
was the eighth state ; and, if one more could be obtained, the 
Constitution would take effect between the nine ratifying 
states. There remained the five states of Virginia, New 
York, New Hampshire, North Carolina, and Rhode Island. 
The state convention of Virginia was called for the 2d of 
June, 1778, of New York for the 17th, and of New Hamp- 
shire for the 18th of the same month. The result was ex- 
pected to be adverse in every one of these states. 

In Virginia the opposition was led by Patrick Henry. He 
brought to the work his wonderful power of eloquence, sar- 
casm, and invective. He no doubt believed that the proposed 
Constitution would lead to the destruction of the states and 
of the liberties of the people. He was a natural master of 
oratory and eloquence. His speeches had place in our earlier 
reading books, as specimens of vehement and patriotic ora- 
tory. But his capacity was small for dispassionate examina- 



86 CONSTITUTIONAL HISTORY. 

tion and logical argument. He was a lawyer. Jefferson 
said that his opinion upon a legal question was not worth a 
brass cent. Nevertheless he struck, fair and true, the line 
that separated the old government from the new. He said 
in opening the debate: " The Constitution is a severance of 
the confederacy. Its language, 4 We, the people,' is the insti- 
tution of one great consolidated national government of the 
people of all the states, instead of a government by compact, 
with the states for its agents. The people gave the conven- 
tion no power to use their name." 

Henry was ably seconded by Richard Henry Lee, William 
Grayson, and George Mason, great names in Virginia in those 
days, and still deservedly held in the highest estimation. 
James Monroe followed their lead. James Madison and 
Governor Randolph were the leading champions of the new 
Constitution. Their conspicuous leadership in the federal 
convention will be recalled. John Marshall, afterwards chief 
justice, came to their assistance, and foreshadowed, in his re- 
marks upon the judiciary system, the great power it was 
destined to wield, under his direction, in keeping both nation 
and states true to their appointed functions. The debate 
lasted a month. It may be read with instruction, as it is re- 
ported in the volumes of Elliot. The ratification prevailed 
by a majority of ten in a vote of one hundred and eighty-six. 
After all, the influence of Washington procured the result. 
Bancroft calls him " The anchor of the Constitution." The 
ratification was absolute and unconditional ; but it was ac- 
companied by the solemn declaration that the people had the 
right to resume the powers granted to the United States 
whensoever the same should be perverted to their injury or 
oppression, — a proposition which is exceedingly plausible 
but very dangerous ; for it does not provide any disinterested 
judge of the acts which may be alleged to be a perversion 
of the powers granted. 

Meanwhile, the State of New Hampshire had ratified the 
Constitution, but the fact was not known in Virginia. 

The opposition to the Constitution was great and bitter in 
the State of New York. Fortunately the convention was 
held so late that New Hampshire, the ninth state, had rati- 



OPPOSITION IN NEW YORK. 87 

fied while the New York convention was engaged in its 
heated discussions. Two thirds of the delegates were elected 
to oppose it. George Clinton was governor of the state and 
a member of the state convention. He, too, was a strong 
state-rights partisan, and an opponent of the new scheme. 
His official influence had been great enough, as early as 1783, 
to induce the legislature to refuse to bestow upon Congress 
the power to collect revenues through its own officers. After 
the British evacuated the city of New York the state estab- 
lished a custom-house there for the sole benefit of her own 
treasury. As the foreign inportations for New Jersey, Ver- 
mont, and a part of Connecticut came through this port, New 
York could really tax these states. She was willing to pay 
the federal requisitions, and did pay them, but was unwilling 
to give up her income from imported goods. Practically, New 
York could dictate the commercial policy of the country. It 
was this claim of right on the part of the state that led so 
many other states to consent to vest the regulation of com- 
merce in the United States. Thus, it finally happened that 
the selfish policy of Clinton, and, it may be added, of Rhode 
Island, destroyed itself. Two of the delegates to the federal 
convention from New York, Robert Yates and John Lansing, 
withdrew from that convention when the vote was announced 
which committed the convention to the formation of a new 
Constitution. They were willing that the Articles of Con- 
federation should be amended according to the New Jersey 
plan, presented by Mr. Paterson ; but were so thoroughly 
opposed to a consolidated central government, acting directly 
upon the people and not through the states, that, in obedi- 
ence to what they supposed to be the sentiment of their state, 
they withdrew, and did not again return. They justified 
their action in a letter addressed to Governor Clinton. This 
letter met with great acceptance. Mr. Lansing was now a 
delegate to the state convention, and a strong leader of the 
opposition to ratification. 

The friends of the Constitution felt, long before the conven- 
tion assembled, that public discussion might be useful in over- 
coming the hostile attitude of the state. Accordingly, a series 
of essays in exposition of the Constitution was written by 



88 CONSTITUTIONAL HISTORY. 

Hamilton, Madison, and Jay, over the common signature of 
" Publius." These essays were published in a newspaper, be- 
tween October, 1787, and June, 1788. They were written 
for immediate effect upon a topic which greatly excited the 
public. One would naturally suppose that they would not be 
entirely free from partisan bias, and that, after the issue had 
been decided, they would share the usual oblivion of fugitive 
publications. But they were destined for a different fate. 
They were subsequently collected and published in a volume 
styled " The Federalist." From that day to this, " The Fed- 
eralist " has held unequalled rank as an authority upon the 
construction of the Constitution. Chancellor Kent, one of the 
most accomplished of American jurists, writing fifty years 
ago, said : " I know not, indeed, of any work on the princi- 
ples of free government that is to be compared in instruction 
and intrinsic value to this small and unpretending volume, not 
even if we resort to Aristotle, Machiavel, Montesquieu, Mil- 
ton, Locke, or Burke." Mr. Justice Story made it the basis 
of his Commentaries. The fifty years that have elapsed since 
Kent and Story wrote, years full of intellectual activity and 
constitutional discussion, would have pushed " The Federal- 
ist " from its pedestal, if its title to supremacy had not been 
indefeasibly grounded in merit ; but nearly every successive 
volume of the United States Supreme Court reports attests 
its value as authority. 

Hamilton was a delegate to the New York convention. So 
were John Jay, Chancellor Livingston, and James Duane, all 
friends of the new Constitution. But Hamilton was the great 
leader in its support. We have a pretty full report of the 
debates. We can now see from them how well equipped 
Hamilton was for the encounter. It was a part of his policy 
to prolong the debate until he could hear from Virginia or 
New Hampshire. He had his couriers at Richmond and Con- 
cord, ready to bring him, as fast as fleet horses could pass over 
bad roads, the decisive news from the convention at either 
place. The New York convention sat at Poughkeepsie. On 
the 24th day of June, Hamilton's messenger from Concord 
rode into Poughkeepsie, bringing the news that New Hamp- 
shire, three days before, had ratified the Constitution. Now, 



NEW YORK CONVENTION. 89 

indeed, the situation was changed. There was no longer a 
confederacy ; the Union was already formed. There was no 
longer a choice between the old system and the new ; the 
state must either join the new system or stay out of it. 

New York was not favorably situated for a separate nation. 
New England on the east, and New Jersey and Pennsylvania 
on the south, belonged to the new Union. Canada was on 
the north, and Great Britain still held the frontier posts as a 
surety that treaty obligations would be performed. Delay, 
with its altered circumstances, finally brought to Hamilton 
and his party the victory that had been denied to argument 
and eloquence. But the Anti-Federalists were reluctant to 
yield, and the debate was prolonged. These debates afford 
instructive commentaries upon the Constitution. I venture to 
condense the main propositions advanced by the respective 
parties. 

We do not oppose a Union ; indeed, we desire one, said the 
Anti-Federalists ; we have one under the Articles of Confed- 
eration ; defective, we grant ; not in its principles, but some- 
what so in the details of execution. We are willing to amend 
these so as to allow Congress to levy and collect the tax to 
meet its requisitions, if the state should not voluntarily pay 
them. Why ask for more? Why make this untried experi- 
ment of a great central government, acting directly upon the 
people, and compelling both states and people to yield obedi- 
ence to laws which are to be, in the execution of the powers 
conferred, the supreme law of the land, any state law or act 
to the contrary notwithstanding ? Then, when there are any 
disputes as to whether the nation or the state has the right to 
act, the national, not the state, court has the right to decide, 
and our fears tell us how that decision will always be made. 
You are creating a great central power, which, if it desires so 
to encroach upon the rights of the states as practically to de- 
stroy them, needs only to declare that it is necessary to do so 
in order to carry into execution the powers conferred upon it ; 
then, if its court decide that it is right, the destruction is com- 
plete, unless we can take up arms to defend ourselves ; and 
we cannot defend ourselves, first, because the United States 
may take our able-bodied men to recruit its army ; and, sec- 



90 CONSTITUTIONAL HISTORY. 

ond, because it has an unlimited power of taxation for neces- 
sary purposes ; and if the United States compel payment of 
the taxes which it may decide necessary to levy upon us, we 
shall have nothing left for state purposes, and cannot even 
support our troops, if we have the men left from whom to re- 
cruit them. How do we know that your President will not 
make himself king ? In the United Netherlands, once its 
chief magistrates were elective, now they are hereditary. The 
Venetians, once a republic, are now governed by an aristoc- 
racy. History furnishes no example of a confederated re- 
public coercing the states composing it by the influence of 
laws operating upon the individuals of those states. Your 
experiment is without precedent or example. It is false in 
principle, for there cannot be two supreme powers over one 
individual, namely, the governments of the state and of the 
United States. No man can obey two masters. Your country 
is too vast in extent to be governed by one power. You create 
a national legislature who may vote their own pay, without 
limitation ; who are too few in number to represent the peo- 
ple, — New York having only six; and who are in nowise 
amenable to the state : what security have we against their 
combinations against our liberties, and their corruption in 
squandering the contributions they extort from us ? Why 
give the South increased representation because of the slave ? 
Do you wish to compel us to sanction slavery ? Representa- 
tion implies the free agency of the persons represented ; the 
slave cannot be represented, because he is not a free agent ; 
and it is false in principle to give his master double represen- 
tation, once on his own account, and then again upon account 
of his wrong to another. And small as our representation is, 
Congress may reduce it ; for the provision is, the representa- 
tives shall not exceed one for every thirty thousand, but it 
does not say that it may not take twice, or many times thirty 
thousand to be entitled to one. We prefer more than six ; the 
more, the better we are represented, and the less risk of cor- 
ruption. The representatives should be chosen every year, 
instead of every two years ; six years as the term of a senator 
is much too long ; the government will fall into the hands of 
the few and the great ; it is not a government of the people ; 



NEW YORK CONVENTION. 91 

it is in everything too far removed from the people, and must 
inevitably become a government of oppression ; not perhaps 
immediately, but gradually, by construction, and by amplifi- 
cation of jurisdiction and power. This may be slow, it may 
be almost imperceptible ; but knowing the natural tendency 
of human nature to hold power when once gained, and to ex- 
tend it when its gratifications have been experienced, we 
plainly see that the states are to fall beneath the United 
States, and the people will be crushed beneath a government 
too remote to hear their voice, and too well assured of its own 
power and permanency to heed it. True, the Constitution 
assumes to guarantee to every state a republican form of 
government ; alas, for the substance, when the form only re- 
mains ! 

Governor Clinton, speaking for the party of which he was 
the acknowledged leader, in substance said : I desire a fed- 
eral republic, in which the states shall form the creative 
principle. Every state must be equal and equally represented ; 
its representatives must look solely to it for their support, and 
for their instructions ; they must collectively vote in obedience 
to its will, and be separately subject to its recall. State sov- 
ereignty is the shield against the encroachments of national 
power. 

Hamilton and his associates replied : The radical vice in 
the Articles of Confederation is that the laws of the Union 
apply to the states only in their corporate capacity. Our 
misfortunes proceed from a want of vigor in the continental 
government. New York and Pennsylvania are the only 
states that have fully complied with the federal requisitions. 
New Hampshire, which has not suffered from the war, is 
totally delinquent. So is South Carolina. The other states 
have only partly complied. Suppose we amend the Articles 
as proposed, giving the nation power to compel the state to 
comply with the requisitions. That may mean war against 
a hostile state. Do you mean that ? If the state refuse to 
comply, how is the nation to proceed against such a hostile 
state ? If you confer the full and unlimited powers of taxa- 
tion, and also control of the army, upon Congress, you estab- 
lish a despotism, the meaning of which word is, all power in 



92 CONSTITUTIONAL HISTORY. 

one body. You are afraid to trust the representatives of the 
people. You can have no government of your own unless you 
trust somebody. Some confidence in our fellows is the basis 
of human society. Unless you will trust your kind, you are 
divided by anarchy, and are become the spoil of the strong- 
est. But there are provided all reasonable checks. There are 
three departments of government, each a check upon the 
other. The President is the representative of the people. He 
can veto bad laws. So the two houses are checks upon each 
other; and these failing, there sits the court, appointed for 
life, removed from the passion of the partisan, and with no 
inducement but to do justice. You elect your own represen- 
tatives ; these will be in positions of honor, and if not honor- 
ably filled, you will send others in their place. Besides, the 
President and judges may be impeached for wrong-doing. 
But human selfishness and ambition also are your safeguards. 
The public servant is under the eye of the public, a public 
quick to see, and prompt to strike dead the madness of tyranny 
and corruption. What reasonable precaution is omitted ? 
Your country is too large to admit of a pure democracy, 
wherein all the people assemble, deliberate, and decide. You 
must from necessity be represented, and better so ; for men 
may be incapable of public affairs and yet choose one of their 
number to represent them who is capable. And so a repre- 
sentative government is the best. The ancient democracies, 
in which the people themselves deliberated, never possessed 
one feature of good government. Their character was tyranny, 
their figure deformity. Their' assemblies were mobs ; the 
field of debate was the theatre of enormity, of mad ambition, 
of bloodshed; it was matter of chance whether the people 
were blindly led by one tyrant or another. You want more 
representatives. The ratio is one to thirty thousand ; you 
want it one to twenty thousand. We cannot argue with your 
emotions, but may not one man understand the interests of 
thirty as well as of twenty ? Remember that he will not rep- 
resent all your interests, but only those of federal concern. 
These are principally commerce and taxation. Are these 
questions generally understood by many, or by few? The 
people may choose whom they please, and we hope they will 



NEW YORK CONVENTION. 93 

choose their best. Suppose they choose the bad ; they must 
conform to the scheme of the Constitution, and if that is wise 
and good, we may yet enjoy good government from bad men. 
Bad grain does not grow from good seed, though the wicked 
sow it. We hope that the popular elections will be pure, and 
unbounded liberty of choice allowed. Public opinion will be 
a great element of safety. Your state governments will, by 
their watchfulness and jealousy of federal encroachment, be a 
check upon it. The national and the state governments have 
their respective spheres ; each will hold the other to its place, 
and the two, thus related, form a double security to the people. 
Surely, if you can appeal to the nation against the injustice 
of your state ; if you can ask your state to interpose against 
the injustice of the nation, you will, indeed, be fortunate. 
We predict that the national government will be as natural 
a guardian of our freedom as the states themselves. But how 
open to corruption is the confederate Congress ! Each state 
has one vote ; nine states must concur in the most important 
measures. Suppose nine states present, and a foreign enemy 
bribes the two delegates who represent one state. The other 
eight are instantly paralyzed, and the measure thwarted which 
may be essential to your national existence. What a differ- 
ence between the old and the new ! The old was made of 
rotten materials put together in haste. The new government 
will not encroach upon the just powers of the state. Does it 
remodel the internal police of any state ? No. Does it alter 
or abrogate any of its civil or criminal institutions? No. 
Any of its forms or safeguards of justice? No. Does it 
affect the domestic or private life of any citizen ? No. Does 
it ask the state to surrender any power or function essential 
to its welfare ? No. The declared object of the new govern- 
ment is to insure domestic tranquillity, provide for the com- 
mon defence, and promote the general welfare. How is it to 
be done ? Not in the least by taking away any of the safe- 
guards or means by which every state may now compass these 
blessed objects, but by strengthening those safeguards and 
means by the added power of all the other states ; not sepa- 
rately, either, in their capacity as states, but by the union of 
all the people who dwell therein. The allotment of represen- 



94 CONSTITUTIONAL HISTORY. 

tatives in proportion to the population, the inclusion of three 
fifths of the slaves in ascertaining the people to be represented, 
the exemption of exports from taxation, the non-interference 
with the importation of slaves until 1808, the imposition of 
a tax upon slaves imported, were matters of accommodation, 
agreed to in order to secure the assent of the states more 
especially benefited by these provisions. You may, indeed, 
discuss them upon their merits, and possibly condemn them ; 
but the states which insisted upon them as important are not 
here to persuade or reply to you : unless you respect the ac- 
commodation, it is in vain to remind you that to some of the 
states equality in the Senate and power in Congress to regu- 
late commerce, to make navigation laws, to impose taxes upon 
imports, to exercise any power with respect to the slave, were 
conceded in the same spirit of compromise. It is easier to 
calculate the evils than the advantages of a measure, and we 
can only deprecate that appeal to the passions which creates 
a prejudice fatal to deliberate examination. We have sought 
to equalize the power of the states ; to balance the depart- 
ments of the government ; to lodge the sword in one depart- 
ment and the purse in another ; to connect the virtue of the 
rulers with their interests ; to make the Union dependent upon 
the states for its executive and senate ; to make the states in- 
dependent of the Union, except in those matters of highest 
concern to the safety, protection, and benefit of all. We 
thought it right that the Union, in the exercise of these pow- 
ers of high concern, should not be impeded or trammelled by 
the interposition of the state. Such powers may not be effi- 
ciently used when most urgently needed, unless they are com- . 
pletely and supremely held. The members of the Union will 
be stronger than the head ; the number of their powers will 
always be greater. The Union can only exercise such powers 
as are conferred ; the state can always exercise all that are 
not given to the Union. 

Such is a skeleton of the principal points urged upon the 
one side and the other in the great debate. 

After the news from New Hampshire, some of the Anti- 
Federalists manifested a disposition to ratify the Constitution, 
upon condition that a convention of the states be called to 



FINAL RATIFICATION. 95 

adopt amendments, which this convention should propose. 
The news of the ratification by Virginia followed in a few 
days. The proposition was then made that New York should 
ratify, but reserve the right to secede from the Union within 
a certain time, if dissatisfied with the experiment. The Fed- 
eralists were of the opinion that a conditional ratification was 
no ratification at all, and in this view they were confirmed 
by the opinion of Madison. The Federalists, however, were 
willing to unite in the recommendation of amendments ; and 
they moved that the ratification be made in the full confi- 
dence that the amendments proposed by this state should be 
maturely considered, and that until a convention be called 
and convened for proposing -amendments, the United States 
would not exercise certain powers within the state. The test 
vote was upon the question, whether the ratification should 
be upon condition that the proposed amendments be made to 
the Constitution, or in full confidence that such amendments 
would be made. The " full confidence " plan prevailed over 
the conditional plan by a majority of only two, in a vote of 
sixty, and thereupon New York came into the Union. 

While this question was pending, Mr. Gilbert Livingston 
spoke substantially as follows : " I desire to explain my vote. 
The great and final question is about to be taken. I have 
had a severe struggle between duty and prejudice. I entered 
this house determined to insist upon amendments to the Con- 
stitution, before I would consent to support it. But my 
present conviction impels me to yield the point. Not that I 
believe the Constitution safe unless amended. But in our 
present situation with respect to sister states, the wisest thing 
to do is to vote for the ratification, in full confidence that the 
amendments advised by us will be adopted. I shall so vote, 
and appeal to my constituents to ratify my action. I shall 
not cease to labor to procure a revision of the Constitution." 

The convention recommended a great number of amend- 
ments to be proposed, and then the convention adjourned. 
There were rejoicings and celebrations by the Federalists, and 
not a little expression of discomfiture on the part of the Anti- 
Federalists. 

North Carolina remained out of the Union until November, 



96 CONSTITUTIONAL HISTORY. 

1789, and Rhode Island until June, 1790. Rhode Island was 
quickened to come in by the fact that Congress, in fixing the 
duties upon imports, treated this state as a foreign country. 
The ratification by nine states having been certified to the 
Congress of the Confederacy, that body adopted a resolution 
fixing the first Wednesday of March, 1789, as the day when 
the new government should go into operation. As the day 
fell on the 4th of March, that date became fixed for the be- 
ginning and the end of congressional and presidential terms. 
The Continental Congress itself stopped on the 3d day of 
March, 1789. Its vitality had long been so feeble that its 
final dissolution attracted no attention. 



LECTURE V. 

Practical Establishment of the Government under the Con- 
stitution. — First Measures. — Influence of Hamilton and 
Jefferson. — The Hamiltonian Era of Liberal Construction. 
— Formation of Parties. — Decisive Measures of the Govern- 
ment. 

The 4th of March, 1789, was the day appointed for the 
new government to go into operation. The city of New York 
was named as the temporary seat of government. Her citi- 
zens by private subscription provided the means to furnish 
suitable chambers in which the senators and representatives 
might meet. But on the first day few senators and represen- 
tatives appeared. Those who did come were not a little an- 
noyed at the delay of the others. It did not augur well for 
the new government. Besides, the disparaging pleasantry of 
the enemies of the new order of things disturbed their com- 
posure. But the roads and weather were bad, while some of 
the elections had been too recent to admit of so early an at- 
tendance on the part of those chosen. After waiting a week 
without obtaining a quorum, a circular was issued to the ab- 
sentees. This circular pointed out " the indispensable neces- 
sity of putting the government into immediate operation." 
But not until the 31st day of March did a quorum of repre- 
sentatives appear, and the senators delayed until the 6th of 
April. The two houses then assembled and counted the elec- 
toral vote. It was found that George Washington had all the 
votes cast, and John Adams had half of them, less one. Under 
the Constitution, as it then was, Washington became Presi- 
dent, and Adams Vice-President. The first presidential elec- 
tors were chosen by the people in five states, and by the leg- 
islatures in five states. The friends of the new Constitution 
mainly did the voting ; those opposed remained away from the 
polls. The State of New York did not participate in the elec- 



98 CONSTITUTIONAL HISTORY. 

tion of the first President, nor did her senators sit in the first 
session of the first Congress until July 19, 1789. The bitter- 
ness with which Governor Clinton regarded the unconditional 
ratification of the Constitution, and his determination that 
there should be another federal convention to propose amend- 
ments to it, probably account for the attitude of the state. 
But Hamilton, Madison, and the other leaders decided not to 
incur the risks of another convention. 

Richard Henry Lee of Virginia declared that it was only 
common fairness to wait and see how the new government 
would work ; that he was opposed to any premature amend- 
ments. As he had been a vigorous opponent of the adoption 
of the Constitution, his position had great weight ; many 
others took the same ground ; and the effort to convene an- 
other federal convention failed. 

Washington was not inaugurated until the 30th day of 
April. After the electoral vote was counted a messenger had 
to be sent to Mount Vernon. Washington had been making 
ready to go to New York. His estate, great as it was sup- 
posed to be, did not supply him with sufficient ready money. 
We find him borrowing six hundred pounds of his friend, 
Captain Conway, to enable him to pay some of his debts, and 
make a decent figure as the first officer of the nation. Mean- 
time under the lead of Madison the House of Representatives 
began the work of making the necessary laws to place the na- 
tion in operation and enable it to obtain some money. 

The first act of the first Congress prescribed the oath to be 
administered to the officers of the government. This oath re- 
quires them to support the Constitution of the United States, 
unlike the constitutional oath required of the President, to 
" preserve, protect, and defend the Constitution." The sec- 
ond act was to impose duties upon certain imports. Its pre- 
amble recited its purpose " to be for the support of the gov- 
ernment, for the discharge of the debts of the United States, 
and the encouragement and protection of manufactures." In 
after times and down to the present day, when the constitu- 
tional right to levy duties for the purpose of protection of 
manufactures has been challenged, one answer has been, to 
point to this preamble and say, " Thus our fathers understood 



ACTS OF THE FIRST CONGRESS. 99 

it." On the other hand it is urged, and I think justly, that 
the debates show that the main purpose was to obtain revenue ; 
but protection was considered, and duties were adjusted to af- 
ford it. Mr. Madison said that the states, ripe for manufac- 
tures, ought to have their particular interests attended to. 
One object in adjusting duties to afford protection, as well as 
to obtain revenue, was to reconcile the states to the new rev- 
enue system by the promise of the advantage which protection 
held out to them ; and it was also believed to be good policy 
to develop every resource of the country essential to its own 
support, to the end that it need not be dependent for supplies 
upon any foreign market. 

This Congress provided for the organization of courts; 
created the departments of State, War, and Finance ; pre- 
scribed their respective functions ; and provided a postal sys- 
tem. There were only seventy-five post-offices then in the 
country. An aggregate of 1659,000 was appropriated for the 
expenses of the government, not including any provision for 
the public debt. This proved to be sufficient for the expenses 
of the first year. Since 1862 the daily income of the govern- 
ment has averaged a greater sum. 

This Congress confirmed the confederate Ordinance of 1787 
for the government of the territory northwest of the Ohio ; 
passed navigation laws; regulated the coasting trade; pro- 
vided for light-houses ; for the sale of public lands ; the gov- 
ernment of the territories ; for the naturalization of aliens ; 
proclaimed a policy respecting the admission of new states, 
and fixed the salaries of public officers. In short, it passed 
the laws necessary to start the new government. Plainly, it 
labored for the public good, with singleness of purpose. 

In creating the Department of State, the question arose 
whether the officer to be appointed by and with the advice of 
the Senate might be constitutionally removed by the Presi- 
dent. The bill contained the words, " to be removable from 
office by the President." The Constitution is silent upon the 
subject of removal, except by impeachment. It provides that 
judges shall hold their offices during good behavior, but is 
silent as to the terms of the other appointees of the Presi- 
dent. It was argued that the power to appoint " by and with 



100 CONSTITUTIONAL HISTORY. 

the advice and consent of the Senate " implied the like ad- 
vice and consent for the removal. But it was seen that the 
power to vote a man in is distinct from the power to vote 
him out, after he is in. The House of Representatives agreed 
that, since the executive power was vested in the President, 
the power of removal was incident to the office of President ; 
and if that were not so, then by law the President ought to 
have the power to remove an unfit executive officer, and that 
the Constitution authorized Congress to confer this power. 
The Senate, more jealous of its powers, divided evenly upon 
the question, and the casting vote of the Vice-President se- 
cured the power of removal to the President. In the presi- 
dency of Andrew Johnson, Congress reversed this early con- 
struction. The rule prescribed by Congress in Grant's ad- 
ministration was that officers appointed by the President 
could only be removed by the like advice and consent ; but 
the President might suspend them, and the suspension would 
be effective only until the end of the next session of the 
Senate, unless meantime the Senate should consent to the -re- 
moval. Congress repealed the Tenure of Office Act in 1887, 
and thus readopted the early construction. 

The Constitution provides that officers of the United States 
shall be established by law. These officers, except the few whose 
appointments are otherwise provided for by the Constitution, 
must be appointed by the President, by and with the advice 
and consent of the Senate. It was not necessary that the 
Constitution should provide for their removal, since the power 
to establish by law implies, as the necessary incident of that 
establishment, the power to declare what the office is, and the 
tenure upon which it shall be held, whether for a term of 
years, during good behavior, or the pleasure of the President. 
The claim that the removal cannot constitutionally be made 
except with the consent of the Senate is probably untenable, 
although it is competent for Congress so to declare by law. 1 

Madison prepared and Congress proposed twelve amend- 
ments to the Constitution for adoption by the states. These 
amendments were framed the more clearly to express the 
limits set to the powers of the general government. The 

1 Ex parte Hennen, 13 Peters, 237 ; Blake v. United States, 103 U. S, 227. 



AMENDMENTS TO THE CONSTITUTION. 101 

Constitution as first adopted conferred certain powers upon 
the government. The argument was urged, and was probably- 
sound, that powers not conferred did not exist in the general 
government, and could not be used. But it was wise, in view 
of the widely expressed apprehension that this might not 
prove true, to state it expressly. The states adopted ten of 
the twelve amendments, and rejected two. Eight of these 
amendments protect the citizens from the oppression of the 
United States, and the ninth and tenth express the non-ex- 
istence in the United States of undelegated power. The ninth 
is, "The enumeration in the Constitution of certain rights 
shall not be construed to deny or disparage others retained by 
the people." 

The tenth is, " The powers not delegated to the United 
States by the Constitution, nor prohibited by it to the states, 
are reserved to the states respectively, or to the people." It 
is a striking evidence of the approval of the general scheme 
of the Constitution by those who most opposed its adoption 
that, in the great mass of amendments proposed by the several 
state conventions, no fundamental change in the system was 
suggested. The twelve amendments proposed were sneered 
at by a member of Congress, as of " no more value than a 
pinch of snuff, since they went to secure rights never in dan- 
ger." Another member characterized them as " whipped 
syllabub, frothy and full of wind, formed only to please the 
palate ; or, like a tub thrown out to a whale, to secure the 
freight of the ship and its peaceful voyage." 

These ten amendments were originally limitations of the 
federal power, and not in any sense limitations of the powers 
of the states. The reason why they were thought to be un- 
necessary by the framers of the Constitution was that the 
United States was created to exercise delegated powers, and 
hence could have no powers not delegated. In other words, 
it was the agent of the people and of the states, and like 
every other agent could not have or exercise any power ex- 
cept such as was given by the principal. But as an agent 
will sometimes assume more power than is actually given him, 
it was felt that the United States would be peculiarly tempted 
to such assumption, and therefore it was prudent to recite in 



102 CONSTITUTIONAL HISTORY. 

its letter of agency that it did not have certain powers, and 
none at all beyond what were written. Experience has shown 
that the amendments were needed. 

Since the late civil war three amendments have been 
adopted. 

These amendments had for their object the denial to the 
state of the power to do injustice to the citizen, and the au- 
thorization of the United States to secure to him justice and 
equality, independently of the state. Though it has been re- 
peatedly held by the Supreme Court that the first ten amend- 
ments were limitations upon the federal and not upon the 
state power, yet since the Fourteenth Amendment now pro- 
vides that " no state shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the 
United States," and since the rights conferred upon the citi- 
zen by the ten amendments are conferred upon him in his 
capacity as citizen of the United States, it is probable that 
these rights cannot now be abridged or denied to him by any 
state. 

Thus after an experience of three quarters of a century, it 
was felt that human rights and liberties were safer with a 
national guarantee than when exposed to the resentment of a 
state, or protected only by its sense of justice. It is proper, 
however, to state that the Supreme Court, as will be shown 
hereafter, has construed several of the first ten amendments 
as merely forbidding the United States to infringe upon the 
rights expressed, and not at all as a bestowal of such rights. 

It was fortunate for the new government that its early de- 
velopment was intrusted to the hands of friends. It was ex- 
tremely fortunate that so good a man, and one who com- 
manded such universal confidence as Washington, was the 
first President. It was fortunate that James Madison was in 
the first Congress. His practical wisdom in the preparation 
and advocacy of the wise and necessary laws enacted by that 
Congress confirms the title which his labors in the Constitu- 
tional Convention justly gave him, to be regarded as the first 
among the foremost of the founders of our constitutional gov- 
ernment. 

Washington appointed Alexander Hamilton Secretary of 



HAMILTON AND JEFFERSON. 103 

the Treasury, and Thomas Jefferson Secretary of State. Jef- 
ferson was then abroad in France, and did not return home 
until the following year. I shall speak frequently of these 
men. They, more than any other two men, moulded the des- 
tiny of the republic. Hamilton stamped his impress upon the 
organization of the government ; Jefferson upon the great 
party that was so long to control it. With perhaps some 
slight exaggeration of speech, it may be said of Hamilton and 
Jefferson that the former, during the twelve years of federal 
control, embracing the administrations of Washington and 
John Adams, caused the national edifice to be constructed ac- 
cording to the constitutional plans and specifications ; that 
then the latter entered into possession, and he and his polit- 
ical family after him, for sixty years, kept the edifice, with 
few changes and slight repairs. 

Hamilton believed in the necessity of a vigorous national 
system, organization, power, and order. The government 
should be so strong that disobedience would not enter the 
minds of the people. Jefferson feared such a government as 
he would fear a tyrant. He would rather risk the anarchy of 
weakness than the tyranny of strength. Instead of control- 
ling the people, it was better to persuade them to do right 
and then trust them to do it. 

In the end the country had the benefit of both their sys- 
tems. Granted that it had Hamilton's first, it could risk 
Jefferson's afterwards. The country did secure the benefit of 
Hamilton's system of organization, and then of Jefferson's 
system of individual freedom. Our great national organiza- 
tion, extending from ocean to ocean, complete in its detail, 
but all springing from the official centre at Washington, is the 
development of Hamilton's ideal. Jefferson's theory of indi- 
vidual freedom and equality seems to have found its full 
realization in the three amendments which our own genera- 
tion has seen added to the national Constitution. Posterity 
has used the methods of Hamilton to mould the theories of 
Jefferson into constitutional form. 

Hamilton was then only thirty-two years of age, but Con- 
gress turned to him as the actual, as well as the official, mas- 
ter of the great problems of finance. He was competent to 



104 CONSTITUTIONAL HISTORY. 

deal with them. The old confederacy had been a pauper, 
passing its empty hat around among the states, and receiving 
instead of the money it needed the contempt usually ac- 
corded to importunate indigency. The new Constitution gave 
to the new government the right to levy and collect the 
money it needed. Hamilton determined that it should not 
only have money in its purse, but that its resources of wealth 
and credit should be vastly greater than those of any state. 
In an exhaustive report to Congress, at the beginning of its 
second session, he unfolded these resources. He explained 
how the revenue should be raised, collected, and managed. He 
furnished estimates of income and expenditure, plans for the 
postal service, the sale of public lands, the regulation of the 
currency, commerce, and navigation, the management of the 
treasury, and the system of keeping its accounts. 

The system of Hamilton has been substantially the system 
of the nation ever since. He was right in his estimate of 
the value of money to the nation, and of the power of the 
nation to obtain it. " He smote," says Webster, " the rock 
of the national resources, and copious streams of wealth 
poured forth. He touched the dead corpse of public credit, 
and it stood erect with life." A few of Hamilton's concise 
sentences will show what results he expected to flow from a 
wise financial policy : " To justify or preserve the confidence 
of the most enlightened friends of good government ; to pro- 
mote the respectability of the American name ; to answer the 
calls of justice ; to restore landed property to its due value ; 
to furnish new resources both to agriculture and commerce ; 
to cement more closely the union of the states ; to add to 
tfi.eir security against foreign attack ; to establish public 
order on the basis of an upright and liberal policy, — these 
are the great and invaluable ends to be secured by a proper 
and adequate provision, at the present period, for the support 
of the public credit." 

While it was for Hamilton to propose these measures, it 
was for Congress to adopt, reject, or modify them. In the 
consideration of the financial measures of Hamilton, differ- 
ences arose which began to mark the lines of division between 
the Federal and the Anti-Federal parties. Hitherto the divi- 



HAMILTON'S FINANCIAL MEASURES. 105 

sion had been between those favoring and opposing the adop- 
tion of the new Constitution. Among Hamilton's measures 
was a scheme for funding, and ultimately paying, the debts 
which had been incurred both by the United States and by 
the states in prosecuting the war. Hamilton advised that 
the United States should assume all these debts. There was 
not much opposition to his plan with respect to the national 
debt, though many thought that the portion of it held by our 
own citizens should be paid only to the extent of its market 
value. The sixth article of the Constitution provides that 
" all debts contracted before the adoption of the Constitution 
shall be as valid against the United States under the Consti- 
tution as under the confederacy." The aggregate seemed 
enormous in that early day. Hamilton estimated that the 
foreign debt of the Union had reached the sum of $11,710,- 
378; the domestic debt $42,414,085; the state debts, in- 
curred in the common cause, $25,000,000. The national 
debts, held in part at home and in part abroad, though greatly 
depreciated, and not " worth a continental," as the phrase was, 
it was one of the great objects of the new Constitution to pro- 
vide means for paying. But there was no such constitutional 
provision respecting the state debts ; and why, it was asked, 
should the United States, struggling under its own acknowl- 
edged obligations, voluntarily assume this added burden ? Of 
these debts, some states had discharged more than others. 
Madison complained, not without reason, of the injustice of 
compelling those states which had borne their own burdens 
unaided to share in the obligations which the delinquent 
states had neglected. Massachusetts and South Carolina had 
contracted the largest state debts, — about $4,000,000 each. 
North Carolina, Pennsylvania, Connecticut, Massachusetts, 
and South Carolina had contracted more than half of the whole 
state debts. The country was startled and cupidity aroused. 
Powerful combinations were formed in favor of the assump- 
tion of the state debts, yet none could be formed strong 
enough to carry the measure upon its merits. I shall pres- 
ently let Jefferson tell how it came to be carried in the next 
Congress in connection with the bill locating the federal cap- 
ital on the Potomac. 



106 CONSTITUTIONAL HISTORY. 

Hamilton and his friends, however, it was said, were anx- 
ious to carry the measure, not so much in the interests of pub- 
lic justice, as for the purpose of securing to the new govern- 
ment the support of this large body of creditors. It was 
readily seen that if the new government, with ample re- 
sources and credit, should assume to pay these debts, so long 
delayed and depreciated by the states, the power and prestige 
of wealth would pass to its side. The new obligations would 
form a circulating medium greatly needed by the impover- 
ished country. 

Pending the consideration of the assumption of the state 
debts, the location of the new capital came up for considera- 
tion. The North wanted it on the Delaware or Susquehanna ; 
the South on the Potomac. Meantime Washington had ap- 
pointed Thomas Jefferson Secretary of State. He had been 
abroad as minister to France. The breaking out of the 
French Eevolution detained him, and he did not enter upon 
his duties as secretary until March, 1790. By that time 
Hamilton's measures with respect to the continental debt had 
been adopted, but the assumption bill was pending. Jefferson 
himself wrote a graphic account of the manner in which the 
capital and assumption bills came to be passed. I quote : — 

" The bill to assume the state debts was lost at first by a 
few votes ; the bill to locate the capital on the Potomac was 
also lost by about the same number of votes. The Eastern 
and Middle States were for the assumption ; the Southern 
States against it. The Southern States wanted the capital on 
the Potomac ; the other states on the Susquehanna. Both 
sections were greatly vexed at losing their favorite measure. 
At the last, the two measures were combined. 

" The assumption bill produced the most bitter and angry 
contest ever known in Congress, before or since the union of 
the states. I arrived in the midst of it, but a stranger to the 
ground, a stranger to the actors in it, so long absent as to 
have lost all familiarity with it, and as yet unaware of its 
object. I took no concern in it. The great and trying ques- 
tion, however, was lost in the House of Representatives. So 
high were the feuds excited on this subject that on its rejec- 
tion business was suspended. Congress met and adjourned 



EARLY LOG-ROLLING. 107 

from day to day without doing anything, the parties being 
too much out of temper to do business together. The east- 
ern members threatened secession and dissolution. Hamilton 
was in despair. As I was going to the President's one day, I 
met him in the street. He walked me backwards and for- 
wards before the President's door for half an hour. He 
painted pathetically the temper into which the legislature 
had been wrought ; the disgust of those who were called the 
creditor states ; the danger of secession of their members, 
and of the separation of the states. He observed that the 
members of the administration ought to act in concert ; that 
the President supported the measure, and that we ought to 
support him ; that it was probable that an appeal from me to 
some of my friends might effect a change in the vote, and the 
machine of government, now suspended, be again set in mo- 
tion. I told him I was a stranger to the whole subject, but 
if he would dine with me the next day, I would invite a 
friend or two, and that I thought it impossible that reason- 
able men might not be willing to make some compromise to 
save the Union. We did dine together the next day, and 
talked the matter over, and came to the conclusion that to 
save the Union some of the members had better change their 
votes. But it was observed that to do this would be a bitter 
pill to the Southern States, and that some concomitant meas- 
ure should be adopted to sweeten it a little to them. It was 
thought that by fixing the capital first at Philadelphia tem- 
porarily, and then permanently on the Potomac, this might 
as an anodyne calm in some degree the ferment. So to carry 
the assumption bill, White and Lee agreed to change their 
votes, and Hamilton agreed to get enough to carry the capital 
bill." 

Both bills were thus carried. The bill for the assumption 
of the debts of states had, however, been modified by reduc- 
ing the amount to about one half the sum proposed by Ham- 
ilton. But the struggle developed the division of parties on 
the lines of strict or liberal construction of the Constitution. 
Hamilton became the leader of the liberal constructionists ; 
this party appropriated the name of Federalists. In the Con- 
stitutional Convention, the term " Federalist " was applied to 



108 CONSTITUTIONAL HISTORY. 

those who wanted to amend the Articles of Confederation ; 
they were in favor of a federal as distinguished from a na- 
tional government. But when the struggle began over the 
adoption of the new Constitution, its friends appropriated the 
name to themselves, thus reversing its signification. Jeffer- 
son became the leader of the strict constructionists, and they 
were called Anti-Federalists. Jefferson afterwards said that 
in consenting to help carry the assumption bill, he had been 
duped by Hamilton before he fully appreciated the signifi- 
cance of the measure. 

It will be readily seen that the strict constructionists were 
state-rights people. The stricter the Constitution was con- 
strued, the less power was committed to tne United States 
and the more retained by the states. Hamilton was some- 
what disappointed by the failure of the framers of the Con- 
stitution to adopt as strong a system of government as he con- 
sidered necessary. But he resolved to make the system which 
was adopted as strong as possible. He conceived that if the 
powers conferred were seized by a bold and firm hand, and 
pushed to their extreme limits by liberal construction and res- 
olute advances, the system might be developed into a gov- 
ernment sufficiently strong to accomplish the purposes of its 
creation. He was intensely practical and active, the master 
of organization and expedients, and always had the courage 
of his convictions. Jefferson was a theorist, a dreamer of 
dreams, a philanthropist, a philosopher, a doctrinaire, a man 
who studied, and thought, and reasoned. He meditated in 
dreamy contemplation in his chair of state upon human 
rights and grave constitutional problems ; while Hamilton, 
with tireless industry and amazing activity set every power 
of the government which he could grasp in vigorous motion. 
Jefferson had no capacity for executive action. There was 
not, in the beginning, in the Department of State, much for 
him to do ; but while Hamilton was busy with his work, Jef- 
ferson was slowly evolving his theories. They took the 
form of a protest against the broad assumption of constitu- 
tional power asserted by Hamilton, and of a plea for the 
rights and liberties of the states and the people against the 
aggressions, which he charged against the policy of Hamilton. 



CHARACTER OF JEFFERSON. 109 

In other words, he professed to be a Republican, the champion 
of the people, the foe of centralization of power in the gen- 
eral government. He believed, or affected to believe, that a 
strong central government would end in the overthrow of 
liberty, and the establishment of a monarch}'. This danger 
must, he thought, be averted by confining the powers of the 
government strictly within its functions as limited and ex- 
pressed in the Constitution. 

His theories were greatly influenced by his sympathy and 
association with the French revolutionists. It could scarcely 
be otherwise. He had been in France five years. When he 
first went there, the monarchy, absolute in its powers, and 
unchallenged in its title, seemed to be among the firmest of 
all human institutions. Before he left, the king, who needed 
money, and did not know how else to get it, had summoned 
the States-general, for the first time after an interim of one 
hundred and fifty-six years. Every reader knows how the 
people, led by circumstances, rose in their unwonted use of 
power, and then, surprised to learn how strong they were, 
went on, step by step, until, in the intoxication and madness 
of strength and liberty, they crushed monarchy, king, nobil- 
ity, clergy, and far too many of the friends of liberty itself, 
and made terror, for the while, supreme. Looking back 
across the century, we see that out of all this anarchy, crime, 
and horror, the cause of liberty and of the people gained. 
Thanks to the French Revolution, constitutional instead of 
absolute governments now rule a great part, and must ulti- 
mately rule the whole civilized world. Perhaps Jefferson 
dreamed true. The ferment was active when he returned 
home. At Paris, his intimacy with Lafayette introduced 
him into the society of the Republicans. He naturally came 
to be regarded as an instructor, counsellor, and friend, whose 
suggestions were valuable. His whole sympathies were with 
them. He went daily to Versailles to attend the National 
Assembly. He actually sketched the chief heads of a charter, 
which he suggested should be extorted from the king. He 
especially sympathized with the maxim of government, " Let 
us alone." If the government is for the people, let it keep 
its hands off the people ; the less power in the government to 



110 CONSTITUTIONAL HISTORY. 

put its hands on the people, the better. These doctrines led 
to the strictest construction of our Constitution, for the more 
its powers were cut down the less the people were molested. 
He naturally became the apostle of the virtue and wisdom of 
the people. Possibly there was a vein of the demagogue in 
his composition ; if so, he was a master of the art of conceal- 
ing it. He was honest in his beliefs, though he may have 
resorted to the arts of the politician in order to make other 
people adopt them. At any rate, as he flattered the people, 
the people rallied to his support. " Why should one man 
rule another? " he said. " Why should the government admit 
of such a possibility, beyond what is necessary for the com- 
mon good? and why not guard the avenues of power with 
jealous care, lest cunning men, like Hamilton, crush our lib- 
erties under the plea of necessity ? " 

Jefferson had acquired great reputation as the author of 
the Declaration of Independence. There does not seem to 
be any new enunciation of principles in that famous instru- 
ment. John Locke, in his treatise upon civil government, 
written in defence of the right of William and Mary to the 
throne of England, had announced the same doctrines, and had 
made them luminous by the light of his clear and compre- 
hensive argument. Locke borrows from and credits much to 
Hooker, who wrote a century before. Voltaire and Jean 
Jacques Rousseau had said much the same things ; and en- 
forced and illustrated them by the wit and acuteness of their 
genius. John and Samuel Adams, James Otis, and Patrick 
Henry had made the principles familiar, in defence of the 
colonies against the aggressions of the crown. The colonies 
themselves had long avowed the same principles in their 
governments. 

Listen to Winthrop, governor of Massachusetts in 1650, one 
hundred and twenty-six years before the Declaration of In- 
dependence : " There is a twofold liberty, natural and civil. 
The first or natural liberty is common to man with beasts. 
Man hath liberty to do what he lists, evil or good. This 
liberty is inconsistent with authority ; to maintain this liberty 
makes men grow more evil. All the ordinances of God are 
bent to restrain and subdue it. Civil liberty has reference to 



JEFFERSON'S GREAT FAME. Ill 

political covenants and constitutions amongst men. This lib- 
erty is the proper end and object of authority and cannot 
subsist without it ; it is a liberty to do only that which is 
good, just, and honest. This liberty you are to stand for, 
with not only the hazard of your goods but of your lives if 
need be. Whatsoever crosseth this is not authority, but a 
distemper thereof." Witness also the Constitution of Con- 
necticut formed in 1638, and the Code of Rhode Island of 
1650. Indeed, the ancient democracies were governments 
by the people. In 1683 Algernon Sidney perished upon an 
English scaffold under condemnation for high treason. The 
main evidence against him was extracted from his private 
writings which the king's officers found in his closet. He had 
written in the privacy of his chamber that " The king is sub- 
ject to the people that makes him king ; " and that " God, 
having given to all men in some degree a capacity of judging 
what is good for themselves, He hath granted to all likewise a 
liberty of inventing such forms of government as please them 
best." The pen of Jefferson transcribed the treason of Sid- 
ney into the text of the Declaration. 

Jefferson, however, illustrated the fact that the man who 
can express in striking phrases the principles which so many 
feel to be true, but cannot aptly express, does an important 
work, and may, in a great crisis, gather to himself much fame 
and honor. This may be said in favor of the Declaration : 
Men had uttered the same sentiments ; but great nations had 
not adopted them. His were words fitly spoken, and they 
became apples of gold in pictures of silver. Other writers 
had contended for the political liberties of the people; but 
now that these had been secured, Jefferson contended for 
their personal equality and liberties as well. The claims of 
the poor and the ignorant were embraced by his benevolence. 
All the people, and not the favored few, should take part in 
the control of the government, and thus keep in their own 
hands the means to protect themselves. 

I enlarge upon the peculiarities of Jefferson because he is a 
commanding figure in our national history. From the begin- 
ning of the century down to the outbreak of our civil war, his 
theories were the accepted creed of a majority of our people. 



112 CONSTITUTIONAL HISTORY. 

His influence, though diminished, still survives. The phrase 
" Jeffersonian democracy " is still current among us. It is 
vaguely thought to mean whatever is right and safe in the 
advance and defence of liberty and good government. It is 
worth while to have a phrase which means that. What his 
ultimate place in our history will be, it is too early to state. 
It is a hard test to subject a man to the judgment of the 
generations that follow him. My own opinion is that we 
shall finally rank him as the truest friend, apostle, and bene- 
factor of the masses of the people which our country has pro- 
duced, notwithstanding the fact that his methods of action 
were weak and sometimes discreditable. 

Washington brought Hamilton and Jefferson into his cab- 
inet, believing them to be the ablest men for the places that 
the country afforded. But for immediate results, Hamilton 
was far the superior of Jefferson. His active, organizing, 
constructive mind, won the confidence of Washington. Al- 
most always when Hamilton and Jefferson differed, Wash- 
ington, after calmly weighing the arguments of each, followed 
the advice of Hamilton. Jefferson records : " Hamilton and 
I were pitted against each other every day in the cabinet like 
two fighting cocks." 

The great struggle, however, between the strict and liberal 
methods of constitutional construction began in earnest over 
Hamilton's proposal, made to Congress in December, 1790, 
to establish the Bank of the United States. At that time 
there were only three banks in the country and currency was 
scarce. Hamilton asserted that a bank would be a conven- 
ient fiscal agent, greatly helpful to the government in the 
management of its finances, especially in making payments, 
and in transmitting money from one part of the nation to the 
other ; and would also " provide for the general welfare " by 
affording a convenient currency, and in giving that accom- 
modation to business men which experience had shown to be 
in a high degree useful and convenient. It was quickly ob- 
jected that this was another measure to make the wealth of 
the country the ally of the government, and of the party 
which now began to regard Hamilton as its leader. 

The constitutional objection was that to create a bank is 



FIRST BANK OF THE UNITED STATES. 113 

to create a corporation, and the power to create either a bank 
or a corporation could not be found in the Constitution. The 
proposition was speedily deduced that in a government of 
delegated, enumerated powers, you must put your finger upon 
the clause of the Constitution which contains or specifies the 
power, otherwise you must admit that the power does not 
exist ; that if you cannot find the power expressed in the 
Constitution, then you must concede also that it is reserved 
to the states, unless the Constitution expressly denies the 
power to the states, which in this case is not done. Hence, it 
was argued, for the United States to exercise the power to 
create a bank or a corporation is not only to exercise a power 
not conferred upon the United States by the Constitution, 
but is to encroach upon the powers reserved to the states. 

It was answered that the rule announced by the oppo- 
nents of the bank, that unless you put your finger upon the 
words of the Constitution in terms conferring the power, the 
power does not exist, is fatally wrong ; that the Constitution 
is an instrument made for the purposes of a government ; that 
in order to carry on a government, whatever particular means 
are necessary in order to use the great powers delegated are 
as much within the terms of the Constitution as if expressly 
written therein ; that the Constitution does expressly enumer- 
ate such great powers as to lay and collect taxes, to borrow 
money, to regulate commerce, to declare and conduct a war, 
and to raise and support armies and navies ; and that after 
conferring these great powers it then confers in express lan- 
guage, "the power to make all laws which shall be necessary 
and proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the gov- 
ernment of the United States, or in any department or officer 
thereof." It is true that nothing is said in the Constitution 
about the creation of a bank or a corporation. But suppose 
a bank is a necessary and proper means to carry on any or all 
of the other enumerated powers, then Congress has the power 
by law to create a bank or corporation, as means to accom- 
plish the great powers especially enumerated. We grant, 
they said, that Congress may not create a bank or corporation 
for the simple purpose of accommodating individuals, however 



114 CONSTITUTIONAL HISTORY. 

useful to them such accommodation may be. But if a bank 
is useful as an agency to promote or render convenient the 
execution of the powers delegated to the United States, then 
as a means to the governmental end, the bank may be created 
within the implied powers of the Constitution. None of the 
powers conferred can be executed without the employment of 
means, and the Constitution does not descend to the minutise 
of pointing out the precise methods to be employed, and there- 
fore we cannot put our finger upon the words which detail 
them. Those who are intrusted with the duty of executing 
the powers must devise the means. Congress is charged with 
the power to prescribe by law the agencies to be employed to 
execute the powers conferred upon it ; and if it shall judge 
that the employment of a bank is appropriate, then it may 
provide for the creation of a bank, to the end that the agent 
may be at hand and subject to command. 

To this part of the argument the opponents of the bank 
answered : " Grant that Congress may employ the means 
necessary to execute the great powers conferred, the Consti- 
tution has by express words, in the section quoted by our ad- 
versaries, limited those means to such as are both i necessary 
and proper ; ' and if we grant that a bank is proper, we do 
not grant that it is also necessary ; the best that can be said 
for it is that it is simply convenient, and the Constitution 
does not allow it because convenient." 

The friends of the bank replied to this by urging that the 
clause in question was intended to enlarge the powers already 
conferred, not to restrict them ; that it was found among the 
powers granted, not among the limitations upon such powers ; 
that the word " necessary " did not imply that the means to 
be used should be indispensable, as in another case where the 
word " necessary " was preceded by the word " absolutely ; " 
that it was rather equivalent to " requisite," " needful," " con- 
ducive to ; " and that in any event, Congress must be the 
judge of the degree of necessity, since the word plainly ad- 
mitted of different degrees, and hence that the true construc- 
tion was, as Chief Justice Marshall afterwards formulated it, 
" Let the end be legitimate, let it be within the scope of the 
Constitution, and all means which are appropriate, which are 



VIGOR OF THE FIRST ADMINISTRATION. 115 

plainly adapted to that end, which are not prohibited, but 
consist with the letter and spirit of the Constitution, are con- 
stitutional." 

This argument prevailed, and the bank was created, and 
the Federalists won the victory. It was a substantial victory, 
for it brought the support of a great moneyed institution to 
the new government, its creator. Twenty-five years after- 
wards the Supreme Court of the United States, in a suit 
against the bank brought by the State of Maryland, sustained 
the constitutionality of the bank, using a method of reasoning 
similar to that just presented. 

In the triumph of the friends of the bank, the Anti-Fed- 
eralists feared that a principle of constitutional construction 
was adopted that must inevitably lead to that extension of 
the federal power which would overthrow the rights of the 
states and the liberties of the people. 

Jefferson said : " The object of all Hamilton's plans, taken 
together, is to draw all the powers of government into the 
hands of the general legislature ; to establish means for cor- 
rupting a sufficient corps in that legislature to divide the 
honest votes, and preponderate by their votes the scale which 
suited ; and to have the corps under the command of the Sec- 
retary of the Treasury for the purpose of subverting, step by 
step, the principles of the Constitution, which he has so often 
declared to be a thing of nothing, that must be changed." 
The opposition to the bank was very great in some of the 
states. Virginia by its legislature had already sent a memo- 
rial to Congress asking that both the assumption law and the 
funding law be repealed. It declared the assumption law to 
be a violation of the Constitution and pregnant with disaster 
to the government. This memorial drew from Hamilton the 
prophetic utterance : " This is the first symptom of a spirit 
which must either be killed, or which will kill the Constitu- 
tion of the United States." The bank was a success, and a 
pillar of strength to the new government. The present na- 
tional banks are its legitimate offspring. The constitutional 
controversies it evoked lasted until the civil war. 

By the close of the first Congress the new nation had made 
long strides towards its permanent organization. Its financial 



116 CONSTITUTIONAL HISTORY. 

policy had been developed ; its revenues were collected with 
certaint}' and regularity. They were sufficient for its expendi- 
tures, which were a marvel of cheapness when compared with 
those of the European governments, and they gave promise 
of the ultimate extinguishment of the national debt. The 
Executive Departments were organized and in systematic op- 
eration. The courts were discharging their functions. Two 
years of intelligent and patriotic work, with but slight hin- 
drance from partisanship, had accomplished surprising results. 
Commerce had increased, new enterprises were undertaken, 
emigration was moving beyond the Ohio River and Alleghany 
Mountains. 

Confidence in the new government had steadily grown. 
Rhode Island and North Carolina had finally ratified the new 
Constitution, and two new states, Vermont and Kentucky, had 
been admitted into the Union. The era of prosperity seemed 
to have commenced. But the new order of government had 
evoked new interests, new causes of jealousy, and new ani- 
mosities. The old order of vested political interests had been 
disturbed. Devotion to the new union had been made the 
test of political action. The younger race of federal politi- 
cians were carrying everything before them in the states. The 
old political leaders who held aloof from the new order were 
pushed from their official seats, and Federalists sat in their 
places. 

These changes begat animosities. The opposition party 
which had been forming in the first Congress was much more 
pronounced in the second, and was strengthened by the mal- 
contents who found themselves pushed against the political 
wall. State and sectional jealousies had been excited. The 
strong hand which had been placed beneath the new govern- 
ment, its bold assumption of constructive powers, its alleged 
favoritism of moneyed interests, its imputed tendency towards 
aristocracy if not monarchy, afforded abundant occasion of 
fault-finding. The anti-federal party came into being as a 
natural growth. It came to stay. It would soon seize and 
long retain the helm of government. It would take on new 
names, divide into factions and seem to disappear, but not 
for long ; finally it would reappear and under the name of 



THE WHISKEY INSURRECTION. 117 

Democracy, pass from power with the administration of James 
Buchanan, and resume it with the administration of Grover 
Cleveland. 

The second Congress was greatly distracted by dissensions. 
The contending parties were respectively inspired by Hamil- 
ton and Jefferson. Hamilton and his measures were the ob- 
ject of attack. The victory remained with Hamilton during 
this Congress, not so much in the new measures which he pro- 
posed, as in defeating the schemes which were devised to over- 
throw him. 

An unsuccessful effort was made in this Congress to regu- 
late commerce upon the basis of discriminating in duties upon 
imports according to the commercial advantages extended to 
us, or withheld from us, by foreign nations. Manifestly such 
a system was contemplated by the framers of the Constitution. 
But the European powers were involved in the war which the 
French Revolution provoked. Our sympathies were with the 
French, but our mercantile and commercial interests were 
largely dependent upon and controlled by British capital ; and 
although bills for the purpose passed the House, they were 
rejected by the Senate. The charge was made that British 
influence was more powerful than American. Such a charge 
easily won belief among those who were controlled by their 
sympathies or prejudices. It was partly true. But it was 
also true that we had more to gain by preserving our estab- 
lished business relations with English traders, than by sever- 
ing them and trying to establish new relations with a govern- 
ment and people so thoroughly unstable and demoralized as 
were the French in the early years of their revolutionary 
paroxysms. 

American shipping was encouraged by a discount of ten per 
centum of the duties upon the goods imported by it, and by a 
tax rate which discriminated in its favor ; but the system of 
discriminatory duties, in which imports from friendly foreign 
nations should be favored, has never been adopted by general 
law, and not at all, except in a few unimportant instances, by 
treaty regulations. 

The important question of the ability of the government to 
enforce an odious excise law was now challenged but success- 
fully answered. 



118 CONSTITUTIONAL HISTORY. 

In 1791, a tax was imposed by Congress upon whiskey dis- 
tilled in the United States. " Excise " was an unpleasant 
word to those whose memories went back to ante-revolution 
days. But the assumption of the state debts made it neces- 
sary to have recourse to this source of taxation. In Western 
Pennsylvania, where whiskey was manufactured, the people 
resolved to resist the collection of the tax. A tax collector 
was tarred and feathered and robbed of his horse. Similar 
acts of violence were practised upon other officers. Whoever 
attempted to support the officers in the collection of the tax 
exposed his life and property to danger. The administration 
did not feel strong enough at first to attempt by force the col- 
lection of the excise. Congress passed an act providing for 
calling out the militia, at the same time reducing the tax. 
But the amended law was no more favorably received than the 
original. The power of the United States to lay the tax, much 
more to collect it, was openly denied. The tax was charac- 
terized as a national halter upon the neck of the states. The 
whiskey patriots opened correspondence with malcontents 
throughout the Union. It is not to be doubted that the mal- 
contents were numerous. 

Jefferson sympathized with the rebels, partly because he 
thought their complaints were just, and partly because he 
could rejoice in the defeat of Hamilton. Hamilton wanted 
the revenue which the excise would yield ; he wanted to seize 
this valuable field of revenue before the states should occupy 
it. Now that the collection was opposed, and leading Anti- 
Federalists sympathized with the rebels, he advised the Presi- 
dent to call out 15,000 militia, and the President issued the 
call. Hamilton had great fear that the militia would not re- 
spond to the call, but they did come forth, they did obey, and 
the crisis was safely passed. The militia of Pennsylvania 
turned out largely through the influence of the governor of 
that state, who overcame their disaffection more by his per- 
suasive oratory than by his authority. The suppression of 
this insurrection was stigmatized as the triumph of federal 
despotism. If, as was feared, the troops had refused to obey 
orders, it is probable the government would have fallen into 
such contempt that its dissolution could not have been 



GENERAL WAYNE'S VICTORY. 119 

averted. But fortunately the national authority was obeyed, 
and the apparent strength of the national power compelled 
respect. 

General Wayne's victory over the northwestern Indians, 
whose hostility it was believed had been stimulated by British 
influence, was a national triumph in which all parties could 
rejoice. It was won in 1794, and was followed by a treaty of 
peace, which was long observed. 



LECTURE VI. 

THE PASSAGE OF THE NATION THROUGH PERILS. 

Troubles with France and England. — Alien and Sedition 
Laws. — Virginia and Kentucky Resolutions. — Downfall of 
the Federal Party. — Jeffersonian Era of Strict Construc- 
tion. — Fears of Monarchy. — Of Dissolution. — French and 
English Outrages. — War with England. — Peace. — Hart- 
ford Convention. — Era of Good Feeling. — Internal Im- 
provements. — Monroe Doctrine. 

Washington retained the confidence of his countrymen 
and was unanimously reelected. For the twenty-two years 
commencing with his second administration, and closing with 
the peace of 1815, our country was kept in turmoil by Eng- 
land and France. Sometimes war threatened us with Eng- 
land and sometimes with France, and it was a happy season 
when we were not in trouble with both at the same time. 
We tried hard to preserve friendly relations with both and to 
avoid giving offence to either ; but in their efforts to destroy 
each other they were too eager and too jealous to be just. 
We would have been content with a very moderate share of 
fair treatment, and no doubt if we had been in a condition to 
do it, we would have declared war against both. Our own 
government seemed to be growing in strength ; Hamilton's 
organizations and measures were operating well. But in our 
foreign relations we were obliged to take counsel of our weak- 
ness. The nation staggered along amidst perils foreign and 
domestic until 1815, when suddenly peace with England dis- 
pelled all dangers ; the " era of good feeling " succeeded, and 
our people vied with each other in devotion to the Union. 

Our sympathies were naturally with the French. In our 
struggle with Great Britain, the French monarchy had sent us 
troops, lent us money, and made our cause its own. The help 
was timely and important; it was sorely needed. True, it 



TROUBLES WITH ENGLAND AND FRANCE. 121 

was the French monarchy and not the republic that helped us ; 
a monarchy which utterly repudiated both in theory and prac- 
tice the idea that the people bore any relation to government, 
except as subjects, bound to implicit obedience. True it was 
that the motive in lending us aid was to injure England by 
depriving her of her American colonies, — colonies which 
France once had hoped to call her own. But whatever the 
motive, the United States reaped the benefit, and the grati- 
tude of our people was great. Our zeal and devotion were the 
greater because now, after centuries of appalling oppression, 
the French so boldty, and apparently so successfully, followed 
our example in striking for their liberties. When the}?- con- 
firmed their republic by executing their king, we could not 
quite approve the means, but we were ready to pardon much 
to the spirit of liberty. 

War was declared between England and France in 1793. 
France appealed to us for such help as we could give. Hat- 
ing England and loving France, hating despotism and loving 
freedom, our hearts were already with the latter. Moreover, 
during our Revolution, in the very crisis of our peril, we had 
made a treaty with the king of France, in which each power 
had agreed to help the other in her war against her enemy. 
This treaty gave privileges to France and denied them to 
England, and if we should adhere to it we would become the 
ally of France and the enemy of England. Washington pon- 
dered long over the situation ; it was critical. Why should 
we, in our feeble condition, when we had just achieved a fa- 
vorable start upon our national career, endanger all by our 
sentimental interference in European affairs? Hamilton 
studied the treaty and found that its language described it 
to be a " defensive alliance " between us and France. His 
quick mind clearly distinguished between a defensive alliance 
and an aggressive one. Although France had at first taken 
up arms to repel aggression and invasion, she now entered 
upon aggressiye war, and declared it to be her purpose to 
overthrow monarchies, and carry the blessings of freedom to 
the nations of the earth. Washington adopted the distinc- 
tion suggested by Hamilton, and issued a proclamation of 
neutrality, to the disgust of Jefferson, who affected to despise 



122 CONSTITUTIONAL HISTORY. 

such a pettifogging quibble. This proclamation greatly in- 
censed our people, or at least those of them whose commercial 
interests did not incline them to favor England. The French 
republic sent her minister, Genet, to this country. England 
had not yet sent any minister here. Washington was willing 
to receive Genet, but the latter chose to stir up the country 
against the administration before he presented his credentials. 
He landed at Charleston, South Carolina, and was received 
there, and everywhere he went, with the utmost transports 
of enthusiasm. He brought with him three hundred blank 
commissions, to be distributed to such persons as should fit 
out cruisers in our ports to prey upon English and Spanish 
commerce, and seize the Spanish territories of Florida and 
Louisiana. He opened stations for the enlistment of Ameri- 
can sailors, established consulate courts to try and condemn 
the prizes taken by French privateers, and, in short, at- 
tempted to organize this nation into an armed and active 
belligerent against England. For a while he seemed to be 
so far supported by the wild enthusiasm of the people as to 
threaten the supremacy of Washington's government. 

John Adams, then Vice-President, afterwards wrote : " You 
certainly never felt the terrorism excited by Genet in 1793, 
when ten thousand people in the streets of Philadelphia day 
after day threatened to drag Washington out of his house and 
effect a revolution in the government, or else compel it to 
declare war in favor of the French Revolution, and against 
England. The coolest and firmest minds even among the 
Quakers in Philadelphia have given their opinions to me that 
nothing but the yellow fever, which removed Dr. Hutchinson 
and Jonathan D. Seargeant (the ringleaders) from the world, 
could have saved the United States from a fatal revolution in 
government." 

Of course Washington was firm in the course he had re- 
solved to take ; he forbade Genet's acts, did what he could to 
counteract them, and finally procured his recall. 

Under the influence of Genet, political clubs were formed 
throughout the country upon the model of the Jacobin clubs, 
which at that time were practically the dominant power over 
the French government. His idea was that they would over- 



TROUBLES WITH ENGLAND AND FRANCE. 123 

awe the administration here, as they did the legislative as- 
sembly, then the ruling power in France. These clubs were 
called republican clubs. The Federalists stigmatized them 
as democratic clubs, and their members as Democrats. The 
term " Democracy " in that day was a word of reproach, sig- 
nifying a disorderly, riotous, and ignorant mob. It has a bet- 
ter meaning now. It is part of the legacy of the French Rev- 
olution. 

The excesses of the French Revolution finally caused a re- 
action of feeling among our people, and Washington was 
applauded for his wisdom and firmness. 

But the little sympathy our government extended to the 
French did not keep us out of difficulty with England. Both 
England and the United States claimed that the provisions of 
the treaty of 1783 had not been observed. England accused 
us of not paying our debts to her merchants, an accusation 
largely true. Hence she retained her military posts upon our 
northern frontier. We complained of this act of hostility. 
We complained still more of her hostility to our merchant 
marine. France enlisted her able-bodied men in her armies, 
and did not leave enough to cultivate her fields. Her armies 
and people could scarcely get food to eat, certainly not 
enough. Our merchant ships sought to carry them provi- 
sions, humanity and profit conspiring. England claimed that 
starvation was an effective means of war, and that our bread- 
stuffs, in transport to her enemy, were contrabrand of war 
and lawful prize. She captured many of these ships, and im- 
pressed into her service many an American sailor. Washing- 
ton's policy was peace if possible. Though he had reason to 
fear that England would not treat with us, he sent there 
Chief Justice Jay, who succeeded in negotiating a treaty. 
This is famous as " Jay's Treaty." It was not much in our 
favor ; it was liberal to England and inimical to the French, 
and our people were again greatly exasperated. Among 
other things it provided that our debts to English merchants 
should be paid, and our supplies of bread to the French 
should stop. The Anti-Federalists resisted the ratification of 
the treaty with the utmost desperation. But it was ratified 
by the Senate. An appropriation was needed to carry out 



124 CONSTITUTIONAL HISTORY. 

the provisions of the treaty, and the bill for this had to origi- 
nate in the House of Representatives. The enemies of the 
treaty sought to defeat the appropriation. It was urged in 
its support that Congress had no constitutional right to re- 
fuse the appropriation, since the treaty was declared by the 
Constitution to be the supreme law of the land. After a 
long and bitter discussion, Congress made the necessary ap- 
propriation. 

The constitutional question thus raised was long a vexed one, 
but the rule is now settled, that if it is necessar}^ for Congress 
to pass any law in order to carry a treaty into effect, Con- 
gress has the constitutional right to refuse to pass the law, 
and may thus defeat or break the treaty. The reason is, that 
by the Constitution both a treaty made and a law passed in 
pursuance of the powers conferred by the Constitution are 
equally the supreme law, and where the two conflict, the 
latest supreme law prevails. A treaty thus supersedes an 
earlier law in conflict with it, and a later conflicting law su- 
persedes or breaks the earlier treaty. If Congress fails to 
pass the law which the treaty requires, the treaty is defeated 
or broken. 

Now the French in their turn were exasperated. They 
retaliated by making capture of our ships. We made some 
reprisals. Our treaty relations were declared to be at an end. 
We could come to no understanding, nor make any new 
treaty with France, so long as the French Directory, the 
executive power of France, held sway. This Directory re- 
mained in power from 1795 until Napoleon captured the gov- 
ernment and became First Consul in December, 1799. 

Meanwhile Washington retired and John Adams, the suc- 
cessful candidate of the federalist party, became President. 
Adams was the revolutionary patriot and leader, a learned, 
good, and great man, despite an unfortunate mixture in his 
greatness of vanity, irritability, and proneness to jealousy. 
The conduct of the Directory was evasive, misleading, and 
mercenary. In 1797 Adams sent three envoys to France to 
try to negotiate a treaty. They were unofficially informed 
that the Directory would not negotiate with them unless first 
presented with a large sum of money. " Millions for defence, 



THE ALIEN AND SEDITION LAWS. 125 

but not one cent for tribute," was the indignant response of 
the nation. War seemed inevitable, and the federal party- 
was anxious for it. But the President was anxious for peace, 
and ruptured his party and lost his reelection by his efforts 
to preserve it. 

When Napoleon came into power a treaty was made. This 
treaty among other things left our claims for French spolia- 
tions to be provided for by ourselves. In 1885 our Congress 
passed an act for determining the validity and amount of such 
claims as might be presented, but the act to provide for pay- 
ing them still remains to be passed. Jay's treaty with Eng- 
land did not protect us against her impressment of our sea- 
men. 

The outrages which we suffered from the injustice of Eng- 
land and France gave additional bitterness to the strife be- 
tween parties at home. The anti-federal press was immod- 
erate in its assaults upon the administration. It so happened 
that several of the anti - federal papers were conducted by 
foreigners. Indeed, there were many foreigners in the coun- 
try whose sympathies were with the French, and their hostil- 
ity to the administration was open and passionate. The fed- 
eral leaders determined to crush out by the strong arm of the 
law these publishers of slanders and fomenters of discontent. 
Hence the famous " alien and sedition laws " were passed. 
The remedy devised was far worse than the disease. It has- 
tened the federal party to its tomb, and was the occasion of 
the formulation of that unfortunate creed of constitutional 
construction and of state sovereignty known as the " Virginia 
and Kentucky Resolutions " of 1798-99. These resolutions 
had the sanction of the great names of Madison and Jeffer- 
son. The resolutions were the ever ready support of the 
threats of disunion, nullification, and secession. However 
overborne by argument, they were never silenced by it, and 
were only effectually put to rest when Lee surrendered to 
Grant in 1865. 

By one of the alien bills the President was authorized to 
cause the banishment of aliens suspected by him to be dan- 
gerous to the peace and safety of the United States. Such a 
bill is of the very essence of despotism and arbitrary power. 



126 CONSTITUTIONAL HISTORY. 

Hamilton, who now was out of office, in vain exclaimed 
against it. It contravened both the letter and the spirit of 
the Constitution. The sedition act authorized punishment of 
the authors of false, scandalous, and malicious writings and 
speeches against the government, made with the intent to 
stir up sedition. The bill, unlike the alien act, did not dis- 
pense with the usual forms of trial, but it manifestly was in- 
tended to abridge the freedom of speech and of the press, and 
was therefore a violation of the first amendment of the Con- 
stitution. Besides, the Constitution conferred no power to 
punish common law offences, of which this was one. To the 
credit of the President he never exercised any of the arbi- 
trary powers vested in him by the alien bill. 

But the prosecutions under the sedition bill were numerous. 
Some were ridiculous, and most were grossly oppressive. 
President Adams, on his return from the seat of government 
in 1799, passed through Newark, N. J. Some cannon were 
fired in compliment to him as he passed through the village. 
An Anti-Federalist, by the name of Baldwin, was heard to 
remark that he wished the wadding from the cannon had hit 
the President in his backsides. For this speech he was con- 
demned to pay a fine of a hundred dollars. 

One Judge Peck of Otsego, in the State of New York, cir- 
culated a petition asking the repeal of the alien and sedition 
laws. He was indicted in the city of New York for this al- 
leged offence, and taken from his home to New York for trial, 
but he was never tried. His forced carriage to New York 
was the occasion of great excitement, and Federalism was held 
up to public execration. Matthew Lyon of Vermont, a mem- 
ber of Congress, and a candidate for reelection, in a published 
address charged the President with " unbounded thirst for 
ridiculous pomp, foolish adulation, and selfish avarice." For 
this offence he paid a fine of one thousand dollars, and lay 
four months in jail. He passed from the jail to his seat in 
Congress ; the Federalists made an attempt to expel him, be- 
cause branded with a conviction for sedition, but the neces- 
sary two thirds could not be secured. In 1840 Congress re- 
funded to Lyon's heirs the amount of the fine with interest. 
Other prosecutions for sedition were only a little less flagrant. 



VIRGINIA AND KENTUCKY RESOLUTIONS. 127 

Jefferson was the acknowledged leader of the Anti-Fed- 
eralists, now self-styled the republican party. He was quick 
to see that the federal leaders had made a mistake, and was 
prompt to use that mistake to their downfall. His idea was 
to overwhelm the federal government and leaders by a sharp, 
sudden, and peremptory command of halt, from the states, 
which in his creed were the equals, and in effect the masters, 
of the general government. Without allowing his agency to 
be disclosed, he procured, resolutions denouncing the alien and 
sedition laws as unconstitutional and dangerous usurpations 
of power to be adopted by the legislatures of Virginia and 
Kentucky. Madison stood sponsor for the Virginia Resolu- 
tions. These resolutions threatened in an undefined way the 
interposition of the state to arrest the evils of the unconstitu- 
tional legislation of the federal Congress. The important one 
is as follows : — 

" This assembly doth explicitly and peremptorily declare that it 
views the powers of the federal government as resulting from the 
compact to which the states are parties, as limited by the plain sense 
and intention of the instrument constituting that compact, as no far- 
ther valid than they are authorized by the grants enumerated in that 
compact, and that in case of a deliberate, palpable, and dangerous 
exercise of other powers not granted by the said compact, the states 
who are parties thereto have the right, and are in duty bound, to in- 
terpose for arresting the progress of the evil and for maintaining 
within their respective limits the authorities, rights, and liberties ap- 
pertaining to them." 

The Kentucky Resolution was not toned down by the cau- 
tious hand of Madison, but retained the form which Jefferson 
gave it. It reads : — 

" Resolved, That the several states comprising the United States of 
America are not united on the principle of unlimited submission to 
their general government, but that by compact under the style and 
title of a Constitution for the United States, and amendments there- 
to, they constituted a general government for special purposes, dele- 
gated to that government certain definite powers, reserving each state 
to itself the residuary mass of their right to their own self-govern- 
ment, and that whensoever the general government assumes undele- 
gated powers, its acts are unauthoritative, void, and of no force ; that 



128 CONSTITUTIONAL HISTORY. 

to this compact each state acceded as a state, and is an integral party ; 
that this government created by this compact was not made the ex- 
clusive or final judge of the extent of the powers delegated to itself;, 
since that would have made its discretion, and not the Constitution, 
the measure of its powers ; but that as in all other cases of compact 
among parties having no common judge, each party has an equal right 
to judge for itself, as well of infractions, as of the mode and measure 
of redress." 

Under this resolution the state might not only interpose, 
but be the judge of the mode and measure of redress. This 
resolution was the text of the secession and nullification doc- 
trine of after years. Jefferson hoped that other states would 
unite in the same declaration, but they refused. 1 

Armed resistance to the federal measures was no doubt con- 
templated by Virginia. This state went so far as to cause a 
great armory to be built at Richmond, in order to be ready to 
make good, in whatever way should appear practicable, her 
demands upon the federal government. 

It is probably a fair inference to be drawn from the action 
of Mr. Jefferson that he then gravely doubted whether, in the 
light of his construction of the tendencies and purposes of 
the federal party and government, the new experiment of a 
national government was, if it could not be corrected, worth 
continuing. We do know that he meant to hurl the federal 
party from power and thus correct the tendency of the gov- 
ernment, if possible ; he probably never fully settled in his 
own mind what specific course he would advise, if, after all, 
the federal party could not be overthrown by peaceful agen- 
cies. In considering the Virginia and Kentucky Resolutions, 
we should not hold Jefferson responsible for the use to which 
they were put long after he was in his grave. They helped 

1 The Assembly of the State of New York responded by resolution adopted 
February 16, 1799, as follows : — 

"Resolved, That as the right of deciding on the constitutionality of laws passed 
by the Congress of the United States doth pertain to the judiciary department of 
the government, this house doth accordingly disclaim the power assumed in and 
by the communicated resolutions of the respective legislatures of Virginia and 
Kentucky, questioning the expediency or constitutionality of the several acts of 
Congress in them referred to." Similar responses were made by most of the 
other states. 



FEDERAL MEASURES EXCITE ALARM. 129 

to serve the purpose of their day and time. Jefferson was 
elected President. He called his election a revolution. He 
said " the Constitution was saved at its last gasp." He no 
doubt thought so. 

While history recognizes the invaluable service which the 
federal party rendered the nation during the administrations 
of Washington and the elder Adams, it must admit that the 
accession of Jefferson was timely and fortunate. The Federal- 
ists met the opportunity and demands of the early formative 
age of the republic. Washington and Adams seized the in- 
fant government with resolute hands and infused into it the 
vigor and force of their own strong natures. Washington, 
especially, found in the Constitution as expounded by the 
genius of Hamilton the warrant for all necessary power. 
Hamilton was not the adviser of Adams. Adams was jealous 
of Hamilton's leadership and influence ; and Hamilton, though 
he respected the integrity and ability of Adams, could not 
conceal his contempt for the whimsical bitterness which flecked 
the real greatness of the grand old leader of the revolutionary 
patriots. The advisers of Adams expanded the constitutional 
powers of the government far beyond the limits which Hamil- 
ton advised. " Where," said Jefferson in a tone of alarm, 
which we may believe was sincere, " does all this tend, if not 
to overthrow the republic and establish a monarchy ? " He 
designated the Federalists as "Monarchists." He had, at 
least, apparent reason to fear the gradual development of the 
government into an anti-republican power. 

By the Constitution " the executive power" is vested in the 
President. In the case of legislative power the words are, 
" All legislative powers herein granted," but the grant of ex- 
ecutive power is not thus qualified. The President is com- 
mander-in-chief of the army and navy. He makes treaties by 
and with the advice and consent of the Senate, and appoints 
ambassadors, ministers, judges, and other high functionaries. 
With an obedient and submissive Congress what might not an 
ambitious and unscrupulous President dare to do ? He has 
the undefined power to take care that the laws shall be faith- 
fully executed. The alien and sedition laws were samples of 
the laws, and the prosecutions under the sedition laws showed 



130 CONSTITUTIONAL HISTORY. 

what might be done in executing them. With our century of 
experience, we regard these powers in the light of the prudent 
way in which they are usually exercised, but Jefferson and 
his party did not enjoy such a satisfactory light. They had 
seen a President send an army into Pennsylvania to suppress 
an uprising against an odious excise tax. They saw a great 
national bank wielding the moneyed power of the nation, and 
the nation itself in the possession of an imperial revenue. 
They saw the nation hostile to republican France, and friendly 
to monarchical England. They saw that the government was 
stronger than the people and prompt to suppress liberty of 
speech and of the press, unless attuned to chant its praises. 
Th,ey saw in the administrations of Washington and Adams a 
pomp and ceremony that took on some of the forms of kingly 
courts. True it was that the country was prosperous, that the 
government had brought in order, and honor, and stability ; 
had settled disputes with foreign powers and with Indian 
tribes ; had regulated commerce ; had counteracted every 
effort to break up the new Union ; and had placed the govern- 
mental machinery in admirable working order. But they felt 
that in proportion to the growth of the nation there was a de- 
crease in the power and rights of the states and of the people. 

Under the lead of Jefferson the people rose and placed him 
in power. He himself subsequently wrote, " The contests of 
that day were contests of principle between the advocates of 
republican and those of kingly power." Had he said the 
contests were between the advocates of state and of national 
power he would have been more nearly right. The Federal- 
ists feared the states. Hamilton wrote in 1792, " I, myself, 
am affectionately attached to the republican theory and de- 
sire to demonstrate its practical success. But as to state gov- 
ernments, if they can be circumscribed consistently with pre- 
serving the nation, it is well ; and if all states were of the size 
of Connecticut, Maryland, or New Jersey, all would be right. 
But as it is, I seriously apprehend that the United States will 
not be able to maintain itself against their influence. Hence 
I am disposed for a liberal construction of the powers of the 
general government." 

It should be borne in mind that the Federalists in power 



FEDERAL MEASURES EXCITE ALARM. 131 

were charged with responsibility under new and possibly 
dangerous conditions ; that they were men of ability and had 
the courage of their convictions ; they felt the need of the new 
government for nerve, money, and power, and they contributed 
these to the best of their ability. They despised their polit- 
ical enemies as malcontent agitators, lacking patriotism, cour- 
age, and sincerity, and they treated them as mischief-makers, 
fit only to be suppressed. They did not do them justice, 
though they thought they did so. 

When Jefferson came into power he paid his tribute to the 
wisdom of the Federalists by allowing the federal machinery 
of government to run on as he found it appointed to do. It 
was the best thing he could do. The alien and sedition acts 
expired. He devised no new methods, and therefore none to 
oppress the people. Certainly under him there was no cause 
to fear any doubtful assumption of arbitrary power. 

That the Anti-Federalists really believed that the Federal- 
ists entertained the purposes they imputed to them, we are 
assured by President Monroe. In 1817 he wrote to Andrew 
Jackson : — 

" That some of the leaders of the federal party entertained prin- 
ciples unfriendly to our system of government, I have been thoroughly 
convinced; that they meant to work a change in it by taking advan- 
tage of favorable circumstances, I am equally satisfied. It happened 
that I was a member of Congress under the confederation just be- 
fore the chaDge made by the adoption of the present Constitution, 
and afterwards by the Senate, beginning shortly after its adoption. 
In these stations I saw indications of the kind suggested. . . . No 
daring attempt was ever made because there was no opportunity for 
it. I thought that Washington was opposed to their schemes, and not 
being able to take him with them that they were forced to work, in 
regard to him, underhanded, using his name and standing with the 
nation, as far as circumstances permitted, to serve their purposes. 
The opposition, which was carried on with great firmness, checked the 
career of this party and kept it within moderate limits. Many of the 
circumstances on which my opinion is based took place in debate and 
in society, and therefore find no place in any public document ; I am 
satisfied, however, that sufficient proof exists, founded on facts and 
opinions of distinguished individuals, which became public, to justify 
that which I had formed. My candid opinion is that the dangerous 



132 CONSTITUTIONAL HISTORY. 

purposes to which I have adverted were never adopted, if they were 
known, especially in their full extent by any large portion of the 
federal party, but were confined to certain leaders, and principally 
to the eastward." 

General Washington, however, said he did not think that 
there were at any time a dozen well-informed men in the 
country who wished a monarchy to be established. 

Another fact should be noticed in passing judgment upon 
the actions and motives of the federal party. Side by side 
with the establishment and development of our government 
was exhibited the astonishing experiment of republican gov- 
ernment in France. Its experience then seemed to be a 
mournful one. The ten years of its operation, closing with 
the last century, seemed to exhibit the utter incapacity of the 
people for self-government. There could be no doubt of the 
passionate devotion of that people to liberty, their heroic 
courage, their willingness to make extraordinary sacrifices, or 
their military strength and skill ; but there was a melancholy 
failure of capacity to establish and maintain any government 
which could accomplish the results which all desired. While 
Adams was yet President and the federal party at the height 
of its power here, every semblance of republican rule in France 
was, with the joyful acclaim of the people, prostrated before 
Napoleon, in whom absolute power and despotism were incar- 
nate. It was not a happy circumstance for us that the gov- 
ernment of the people by the people seemed to be so pitiable 
a failure in France. 

Our federal leaders never professed much sympathy with 
the people. While they thought they were fit to confer power, 
they did not think them fit to exercise it. They believed 
them too ignorant, too fickle, and too easily misled, to be in- 
trusted with the use of governmental power. Hence their 
policy was to keep them well in hand, to have them look upon 
the government and its officers with respect and deference, 
and to be happy if they were permitted to make a choice of 
superiors, but not to entertain the thought of assuming to be 
equal with them. The sedition laws were the weapon by 
which the presumption to criticise too freely the government 
or its officers was to be awed into silence. The Federalists 



DOWNFALL OF THE FEDERAL PARTY. 133 

did not gauge aright the new era which was about to dawn. 
The American people had never been anything more than 
nominal subjects of a king. They had in reality always been 
freemen, and under the lead of Jefferson they were not slow 
to see that they had the same right to participate in the na- 
tional government which they had always enjoyed in their 
town meetings and local assemblies. They had not been sub- 
jected to the centuries of serfdom which had abased the French 
peasant, and which made the gift of freedom so strange a 
thing that he did not know how to use it. The pomp and 
ceremonies of royalty could not be transplanted to this conti- 
nent. Indeed, so slight was their hold here that with less than 
the wave of his hand Jefferson swept them all away, and with 
them all the forms of dress by which the old school gentleman 
had long been wont to assert his social superiority over the 
ordinary citizen. 1 

The federalist party never again came into power. For 
the sixty years following the inauguration of Jefferson the 
prevailing party in the country, by whatever name it was 
called, was largely dominated by the Jeffersonian principle. 
That principle may be expressed thus, " We are governed 
too much, let us alone." The nation existed, but it was the 
states that grew great. The national power was feebly as- 
serted. The national coherence was not firm. Dissolution 
and disunion were constant spectres, to be averted, not by the 
national strength, but by the national concession. I shall 
show hereafter that the Supreme Court of the United States 
grew to be great, but every other department failed to de- 
velop into anything like a dominant and controlling factor in 
the nation's life. The Constitution was so construed in times 
of peace as to stand constantly in the way of everything ex- 

1 It may be worth while to record that the so-called gentleman who paid his 
respects to Lady Washington, as she was frequently called, wore a very differ- 
ent costume from the dress suit with which we are familiar. His hair was 
powdered, and a queue or pigtail fell between his shoulders. Pie wore a small 
cap of red velvet over one of white cambric, the latter being so adjusted as to 
form a border of two inches around the velvet cap. A gown of blue damask 
lined with silk, a white stock, a white satin vest embroidered, black satin 
breeches, uniting about the knees with white silk stockings, and red morocco 
slippers with broad silver buckles, made him presentable. Jefferson changed all 
this, not by any order or decree, but because he did not adopt or encourage it. 



134 CONSTITUTIONAL HISTORY. 

cept the merely routine work. Great struggles and great 
debates there were in Congress, but as a general rule the do- 
nothing policy, both at home and abroad, prevailed. When- 
ever any question arose between the nation and the states, the 
states usually had their power and jurisdiction conceded, ex- 
cept, indeed, when the question was brought into the Supreme 
Court. The nation insensibly and steadily grew under the 
influence of the court. The truth is that under our system of 
government the state government usually fully responds to 
the necessary governmental requirements of the citizen and 
satisfies them, and there is seldom any need of national action. 
It was no doubt true, therefore, that in the earlier history of 
the nation, after the general government was happily estab- 
lished, the less it obtruded itself upon the people the better. 
Certain it is that after its sixty years of Jeffersonian doze, it 
awoke strong, and vigorous, and resolute enough to put down 
the rebellion which threatened its existence. 

In the election of 1800, Jefferson and Burr were the candi- 
dates of the anti-federal party, and Adams and Charles C. 
Pinckney of the Federalists. As the Constitution then was, 
the candidate receiving the highest number of votes became 
President, and the candidate receiving the next highest Vice- 
President. Jefferson and Burr received a majority over 
Adams and Pinckney, but themselves received an equal num- 
ber, and the choice of President and Vice-President devolved 
upon the House of Representatives. The Anti-Federalists 
had intended that Jefferson should be President, and Burr 
Vice-President, but such was the hatred of the Federalists to- 
ward Jefferson that many of them determined that Burr 
should be elected President if possible. Thirty-five ballotings 
were had without result. On the thirty-sixth ballot Jeffer- 
son was elected. This result was due to Hamilton. His in- 
fluence with the Federalists was great. He said : " If there is 
a man in the world I ought to hate it is Jefferson, but the 
public good must be paramount to every private considera- 
tion." He said that Burr was bad morally and politically, 
and unfit to be trusted with the presidency. His act of patri- 
otic fidelity to his country ultimately cost him his life. 

This election led to the amendment of the Constitution to 



ACQUISITION OF LOUISIANA. 135 

the effect that the electors should designate by their votes 
one person for President and another for Vice-President. 
This amendment, though not intended to change the original 
scheme of the Constitution, did materially change it. Under 
the original plan one candidate would be taken from the 
North and the other from the South ; thus both sections had 
an equal chance to secure the President. As it could not 
be known which one would be chosen, there was less reason 
to look in advance to either for the favors of office, and hence 
less reason for the partisan contests which have occurred 
under the present system. 

The greatest act of Jefferson's administration was one which 
he really believed he had no constitutional power to perform. 
This was the acquisition of the Louisiana territory. Napoleon 
was first consul. Jefferson wanted to obtain full control of 
the Mississippi River. Napoleon wanted money and was 
afraid the English would take his territory away. Both 
wished to bargain, but Jefferson had, as he conceived, no con- 
stitutional power. He determined, however, to take the risk, 
and obtain constitutional sanction afterwards if necessary. 
The Federalists never ceased to exclaim against his daring 
violation of the Constitution, and they affected to consider it 
the baser wrong, since Jefferson was professedly so strict a 
constructionist. The argument in support of the alleged un- 
constitutionality of the purchase was : The Constitution is 
silent upon the subject of the acquisition of territory, and 
therefore the power does not exist. The modern opinion 
is that the argument was unsound ; that the power to make 
treaties, and the power of Congress to provide, if necessary, 
the purchase money, both uniting in the act of purchase, 
bring it within constitutional competency. 

This acquisition of the Louisiana territory was of greater 
importance than either Jefferson or Napoleon dreamed. The 
territory can support more population and produce greater 
wealth than France herself. 

The Jay treaty expired in 1804. France and England were 
still at war with each other, and the usual outrages upon our 
commerce and upon our seamen continued. France wanted 
our breadstuffs, and the high prices tempted our traders to 



136 CONSTITUTIONAL HISTORY. 

supply them. England had nearly driven the French from 
the seas, and to starve the people into subjection was part of 
her policy. In 1806 and 1807 she declared the French ports 
blockaded. The French retaliated by declaring the English 
ports blockaded, and also all the ports of the powers allied with 
England against France. The result was, the American ships 
were in danger of capture, no matter to what European port 
they sailed. Jefferson remonstrated against this injustice, but 
his remonstrances were without result. The American trade 
was principally carried on by the Northern States. France 
had so little naval strength that the northern traders saw 
that the best policy for them to pursue was to disregard the 
French blockade of the English ports, and carry on trade as 
usual with England, and thus induce her to relax her block- 
ade of the French ports in our favor. Besides, the Americans 
could have made reprisals upon France, which would have 
conciliated the English. But the northern traders were mostly 
Federalists, and were therefore suspected of being friendly to 
England and hostile to France, while Jefferson hated England 
and loved France. 

Jefferson concluded to recommend an embargo on all Amer- 
ican shipping until one or both the belligerents should suspend 
their obnoxious blockades. At this time Spain was an ally of 
France. She disputed our boundaries, menaced our frontier, 
and denied our right to the possession of Mobile. She, too, 
joined in the spoliation of our commerce. The embargo rec- 
ommended by Jefferson was authorized by Congress, and the 
result was that English and French ships could not enter our 
ports, and our own ships could not leave them. Practically 
this did not much affect England. She sent her goods into 
this country through the Canadian ports. What American 
goods were exported went out through Canada, or in viola- 
tion of the embargo. New England ships began to rot in 
their ports, and New England people began to turn their at- 
tention to manufactures. After fourteen months of experi- 
ence under the embargo, Congress repealed the act and sub- 
stituted the non-intercourse act. This act allowed trade with 
some foreign countries but forbade it with England and 
France. This only partly relieved the distress, and did not at 



WAR OF 1812. 137 

all satisfy the New England shippers. The Federalists now 
unearthed the Virginia and Kentucky Resolutions, and denied 
the right of the nation to adopt either embargo or non-inter- 
course measures. 

An embargo is simply a protection to your own ships until 
you can get ready to fight. You order them into port lest the 
enemy capture them, before you can otherwise protect them. 
But Jefferson ordered them into port, and did not get ready 
to defend them, and Madison followed his example. Their 
idea was that if France and England could not trade in our 
ports they would come to reason. It was a mistake. It 
practically left England to do the trading for the whole earth. 
We lost trade, time, and ships. 

James Madison became President in 1809. A treaty was 
negotiated with England through her minister which prom- 
ised relief to American shipping, and Madison suspended 
the non-intercourse act. But England refused to ratify the 
treaty, alleging that her minister had exceeded his instruc- 
tions. Madison then restored the non-intercourse act. Mean- 
while France pretended to have withdrawn her blockade de- 
cree, but there did not appear to be such evidence of it as 
was satisfactory to England, and she refused to withdraw 
her decrees of blockade. The government still had faith in 
France, and suspended the non-intercourse act as to her and 
left it remaining as to England. The administration, weary 
of its miserable, shifting embargo and non-intercourse policy, 
was now strongly in favor of war with England. There was 
cause enough, if we had been in condition to fight. England 
had impressed our seamen, infringed upon our maritime juris- 
diction, disturbed the peace of our coasts, established paper 
blockades to our injury, violated our neutral rights, and de- 
nied every appeal made by us to her for justice. On the 
other hand she maintained, not without some color of justice, 
that we had waged war against her in disguise. She had 
crippled France by destroying her navy, but our ships were 
ready to furnish her with every suppty of provisions and 
munitions of war that she could pay us for. England said 
that if the United States had withheld these supplies, France 
would have sued for peace years before. 



138 CONSTITUTIONAL HISTORY. 

Congress finally declared war against England on the 18th 
day of June, 1812. It is a remarkable fact that five days 
after that date England withdrew her Orders in Council estab- 
lishing the blockade. But the war party in the country had 
been gathering force and audacity so long that Madison, who 
was a peace man at heart and dreaded the war, was forced 
to carry it on. The ground upon which it was insisted upon 
was the unjust pretence of England to search our ships and 
impress our seamen. As it was difficult to distinguish an 
English from an American sailor, it happened that many 
American sailors were impressed under the false pretence 
that they were Englishmen. The Americans claimed that, 
whether English or American, the nationality of the flag de- 
termined the nationality of the crew. 

The war was characterized by the peace party, and with 
great justice, as " rushing headlong into difficulties with lit- 
tle calculation of the means, and little concern for the con- 
sequences." The country was not well prepared for it. It 
lasted two years and a half. It was discouraging by land, 
but brilliant on the seas. Fortunately for us the allied armies 
of Europe overthrew Napoleon in April, 1814, and sent him 
to Elba. Peace seemed to be reestablished in Europe. Eng- 
land was weary of war after so many years of struggle, and 
was disposed to make peace with us. This disposition was 
stimulated by the apprehension that Russia would offer to 
interpose as a mediator. Russia was friendly to us, and Eng- 
land did not desire to have her sit in judgment upon her pre- 
tensions to contraband, blockade, and impressment rights. 
Nor did she want to be rude to her ally and neighbor. She 
therefore made more haste to negotiate with us. But we 
were not in a condition to insist upon rigid terms, and were 
glad to get out of the war without saying anything about the 
claims we went to war for. 

After the date of the treaty of peace, General Jackson, be- 
fore he heard of it, won the brilliant victory of New Orleans. 
This victory vindicated American valor and prowess, and our 
people were proud and happy. Although nothing was said 
in the treaty about the impressment of our seamen, the event 
proves that it was not necessary to say anything. During 



THE HARTFORD CONVENTION. 139 

the seventy-three years that have since elapsed, not one 
American seaman has been impressed by England, or by any 
other foreign nation. 

Although the federal party had given place in the nation 
to the anti-federal or republican party, it remained strong 
in New England until the war closed. The party bitterly 
opposed the war. It hated Mr. Jefferson and his party. 
His restrictive and really unwise policy, commencing in 1806 
and continuing until the war was declared in 1812, was dis- 
astrous to the shipping and commercial interests of New 
England. The Federalists protested that their interests were 
ruined under the pretence of protecting them. They put 
obstacles in the way of the prosecution of the war. The gov- 
ernors of Massachusetts and Connecticut denied the right of 
the President to call out the militia of those states. They 
denied the right of the federal officers to command the mili- 
tia when called out. They denied that the President had 
the right to decide whether the exigency existed which gave 
him the constitutional right to call out the militia, and 
claimed the right to decide themselves. They said if they 
could control their own militia they could repel any invasion 
without the help of the United States. The administration 
practically took them at their word, and left New England to 
take care of her own coasts and ports. ^ 

It was under the exasperation caused by this state of affairs 
that the famous Hartford Convention assembled in December, 
1814. Delegates were sent from all the New England States. 
Those from Massachusetts, Connecticut, and Rhode Island 
were sent in pursuance of a resolution of their legislatures ; 
those from Vermont and New Hampshire were chosen by 
local assemblies. The legislature of Massachusetts declared 
that, " The general objects of the proposed conference are, 
first, to deliberate upon the dangers to which the eastern sec- 
tion of the Union is exposed by the course of the war, and 
which there is too much reason to believe will thicken around 
them in its progress, and to devise, if practicable, means of 
security and defence, which may be consistent with the pres- 
ervation of their resources from total ruin, and adapted to 
their local situation, mutual relations and habits, and not re- 
pugnant to their obligations as members of the Union." 



140 CONSTITUTIONAL HISTORY. 

This convention greatly alarmed the administration. Its 
sessions were secret. That its members hated the adminis- 
tration and the war, and regarded* the connection of New 
England with the Union as an evil to be deplored, there is 
scarcely room for doubt. Nevertheless, judging of their in- 
tentions by the resolutions they adopted, it must be admitted 
that they stopped far short of advising secession. They rec- 
ommended to the legislatures of the several states to adopt 
measures to protect their citizens from the operation and ef- 
fect of the acts subjecting the militia and citizens to drafts, 
conscriptions, or impressments, not authorized by the Consti- 
tution of the United States ; also that the government of the 
United States be requested to consent to an arrangement by 
which the New England States might be permitted to defend 
themselves, and for that purpose keep their proper proportion 
of the taxes paid by such states, and that these states take 
proper measures for their own defence against the enemy. 
The convention also asked that the Constitution of the United 
States be amended, by providing that slaves should not be 
reckoned in apportioning taxes and representatives ; that no 
new state be admitted to the Union without the consent of 
two thirds of both houses ; that no embargo should exist for 
more than sixty days ; that without the concurrence of two 
thirds of Congress, commercial intercourse with foreign na- 
tions should not be restricted, nor war declared ; that the 
President should not be eligible to reelection ; and that for- 
eign-born citizens should not be allowed to hold office. In 
conclusion they advised that another convention be held the 
following June, if the present recommendations should not be 
heeded. 

While this convention kept within the legal rights of free 
citizens of the United States, its threat to convene another 
convention was intended to intimidate the government. For- 
tunately peace was declared within a few days after it ad- 
journed. It had no occasion to reassemble. However hon- 
estly mistaken in their action its members may have been, 
they suffered the political execration of their own generation, 
and must receive the condemnation of history. When our 
country is engaged in a life and death struggle with its enemy, 



MONROE'S ADMINISTRATION. 141 

however inexcusably it may have rushed into it, duty, morality, 
and patriotism alike command that we do not aid the enemy, 
and embarrassment of our own country is aid to the enemy. 

With the return of peace, its blessings followed in rich 
abundance. The nation seemed suddenly to have become 
great, and the Union, so sorely threatened during these weary 
years, became the object of universal pride and devotion. 
Party spirit relaxed. The federal party was buried in the , 
grave of the Hartford Convention. The British faction and | 
the French faction disappeared with the troubles which nursed 
them. Not a cloud of danger darkened the national sky, 
Everybody was willing to join in the proper provision for the 
waste and cost of the war. Even the republican party con- 
sented to surrender its prejudices, and to charter a new na- 
tional bank ; the charter of the old one having expired before 
the war. The war which had destroyed the shipping interests 
had developed the manufacturing interests, and since a greater 
revenue was needed, the tariff was adjusted to protect these 
infant industries. Strange to say, South Carolina, led by 
Calhoun, urged the protective tariff, and New England, led 
by Daniel Webster, resisted it. 

James Monroe succeeded Madison as President in 1817. 
He was a thorough disciple of the school of Madison and 
Jefferson. He had had a large experience in public affairs, 
dating from the confederate Congress. He had no capacity 
for the great problems of political science over which his 
teachers, Madison and Jefferson, delighted to ponder, but for 
the practical administration of a government already estab- 
lished upon a solid basis, he was far the superior of either. 
While the presidency detracts from the just fame of Madison 
and Jefferson, it suffices to preserve that of Monroe from 
oblivion. His two administrations were of great tranquillity. 
Parties so far died out that no division existed in the popular 
vote upon his second election. He then received all the elec- 
toral votes save one. The constitutional questions which agi- 
tated his administration were chiefly confined to the power of 
the national government to build great national roads about 
the country. The West began to be felt as a factor in the 
nation. It was before the era of railroads and steamboats. 



142 CONSTITUTIONAL HISTORY. 

It was thought to be wise policy to bind the country together. 
Business would thrive; states would be brought closer by 
great national highways ; over them foreign immigrants and 
our own people could move on towards the wilderness and 
the prairies ; the mails could be carried, and troops marched 
if there should be need. Many schemes of this kind were 
proposed ; the administration favored them, but denied the 
constitutional power. Internal improvements became the 
rallying cry of new parties. The great Cumberland Road, 
which stretched across the mountains from the Potomac to 
the Ohio River, was begun in 1806. It was the parent of in- 
numerable schemes to build roads at the expense of the nation. 
Mr. Monroe in 1822 vetoed the bill making appropriations 
for repairs of this road, assigning as the ground of his veto 
the unconstitutionality of the laws under which the road was 
made and maintained. 

The Constitution provides that " no state, without the con- 
sent of Congress, shall lay any duty of tonnage." Every 
state at the time of the adoption of the Constitution had a 
sea-coast and at least one sea-port of more or less importance. 
The early practice under the Constitution was for each state, 
in order to improve its harbors, sea-ports, or navigable rivers, 
to impose some duty of tonnage, and for Congress to pass an 
act consenting. Congress, however, from the beginning 
steadily appropriated money for light-houses and public piers. 
The state was required to cede to the United States exclusive 
jurisdiction over them. The admission of states having no 
sea-port was finally followed by complaints that it was unfair 
for the t sea-port states to provide for internal improvements 
by levying duties which the inland consumer would have ulti- 
mately to pay, while the inland states must make their neces- 
sary internal improvements at their own expense. The Cum- 
berland Road was the first concession to this complaint. Jef- 
ferson, Madison, and Monroe denied that Congress had any 
power to authorize and maintain these roads upon the terri- 
tory of a state without the consent of the state. John Quincy 
Adams held the opposite, but Andrew Jackson denied the 
constitutionality of such legislation. Nevertheless, Congress, 
by making provisions for internal improvements in the appro- 



INTERNAL IMPROVEMENTS. 148 

priation bill, — a bill which is generally so framed that the 
President cannot veto it without depriving the government 
of the means to perform its functions, — succeeded in mak- 
ing large appropriations for internal improvements. 

The success of the Erie Canal in the State of New York, 
and the introduction of railroads and steamboats, put an end 
to road-building by the nation, but meantime the improve- 
ment of harbors and rivers by the general government was 
foisted upon it. On the 3d day of March, 1823, the first act 
for the improvement of a harbor was passed by Congress. It 
owed its origin to an expression in Mr. Monroe's message 
vetoing the Cumberland Road bill. While he denied the 
power of Congress to assert any jurisdiction in a state over 
a turnpike gate, or bridge, and to punish any one for injur- 
ing them or for refusing to pay toll, because these were the 
domestic matters of the state, he nevertheless said that Con- 
gress had power to appropriate money at its discretion for 
objects of national importance, and the President could not 
sit in judguient upon the selections of the objects made by 
Congress. He was clearly wrong in the last proposition. But 
Congress soon chose to select harbors as the object of the 
national lavishness, and thence the extension to rivers was 
easily made. In 1846, President Polk vetoed a river and 
harbor improvement bill, and in 1856 President Pierce also 
vetoed one. Congress passed the bill over his veto. This 
was the first instance in the government under the Constitu- 
tion in which a bill was passed over the veto of the President. 
Thereafter, this kind of improvement fell into desuetude until 
1870, but the public hunger for an appropriation was in the 
mean time somewhat satisfied by the erection of public build- 
ings, such as post-offices, custom-houses, and the like. In 
1870 a river and harbor bill appropriating 12,000,000 was 
passed, and was approved by President Grant. The power 
of Congress " to regulate commerce " is now supposed to em- 
brace this power. The public rapacity was now manifested 
by the rising tide of appropriations, until in 1883 they reached 
the sum of $18,700,000. President Arthur vetoed the bill, 
but Congress, to its dishonor, immediately passed it over his 
veto. In 1888 a bill appropriating over 120,000,000 was al- 



144 CONSTITUTIONAL HISTORY. 

lowed to become a law. It is useless now to discuss the con- 
stitutional power of Congress to appropriate money for the im- 
provement of rivers and harbors, since the congressional and 
presidential decisions are final upon such a question ; but as 
a question of expediency and morality, in view of the system 
of " log-rolling" by which the appropriations are inflated and 
carried, it is to be regretted that the conservative construction 
of Jefferson and Madison should have been departed from. 
Neither political party has virtue enough to refuse the im- 
proper appropriations demanded for this purpose. 

In Monroe's administration we acquired Florida from Spain 
for the sum of 15,000,000. By the treaty of cession the Sa- 
bine River was described as the boundary between Louisiana 
and the Spanish dominions. It was subsequently alleged that 
we thus gave away our claim to Texas, — a claim which we 
ought to have made good under the Louisiana purchase from 
France. 

In President Monroe's message of 1823, the declaration 
since famous as the " Monroe doctrine " was made. 

The occasion for the declaration was this : After the down- 
fall of Napoleon, three of the powers arrayed against him, 
Russia, Austria, and Prussia, together with France, then re- 
stored to monarchy, formed what was termed a "Holy Alli- 
ance," to maintain the principle of the legitimacy of the ex- 
isting dynasties. If the principle should be threatened in 
Europe, these powers promised armed interference to pro- 
tect it. This was in 1820. England had acquiesced in this 
agreement of the Holy Alliance. But in 1823 her secretary 
of foreign affairs represented to our government that Eng- 
land apprehended that the Alliance entertained the project 
of armed intervention to reduce the revolted Spanish do- 
minions in North and South America to the control of such 
monarchical governments as the Alliance might dictate. Eng- 
land preferred that the revolted dominions should remain in- 
dependent, hoping to establish better trade facilities with them 
in their condition of independence than if they were controlled 
by Spain or by the Holy Alliance. Besides, she wanted the 
United States to disclaim all intention of acquiring any of the 
American Spanish states. Our government was afraid that 



THE MONROE DOCTRINE. 145 

the Holy Alliance would restore all South America to Spain 
and reinstate Spanish dominion over Mexico. President Mon- 
roe, in his message in 1823, thereupon said : " We owe it to 
candor and to the amicable relations existing between the 
United States and the allied powers to declare that we should 
regard any attempt on their part to extend their system to 
any portion of this hemisphere as dangerous to our peace and 
safety. With the existing colonies or dependencies of any 
European power we have not interfered, and shall not inter- 
fere, but with the governments which have declared their in- 
dependence and maintained it, and whose independence we 
have on great consideration and just principles acknowledged, 
we could not view an interposition for oppressing them, or 
controlling in any other manner their destiny by any Euro- 
pean power, in any other light than as a manifestation of an 
unfriendly disposition towards the United States. . . . The 
American continents should no longer be subjects for any new 
European colonial settlement." This was very bold doctrine 
for the United States to promulgate. Compared with the 
powers which composed the Holy Alliance our country was 
feeble. But this bold proclamation commanded respect. Of 
course this doctrine is not law, and if any occasion should 
arise for its application, our government would be governed 
by the circumstances, and do what it thought to be right. 
Indeed, it refused to interfere in 1863, when France placed 
Maximilian on the throne of Mexico. But then we were en- 
gaged in our civil war, and one war at that time was all we 
could well attend to. After the war our government signified 
to France that the presence of her troops in Mexico was dis- 
agreeable. The troops were withdrawn and Maximilian and 
his empire perished. There is no doubt that the Monroe doc- 
trine asserts a policy which the people of the United States 
would be willing and prompt to sustain and enforce, if any 
occasion should arise in which we should feel justified in as- 
serting it. 

10 



LECTURE VII. 



THE JACKSON ERA. 



Bank. — Office-holding. — Tariff. — Nullification. — Whether 
the Constitution is a Compact between States, or the Su- 
preme Government over the People ? — Annexation of Texas. 
— Close of the Period of Narrow Construction. 

The decay of old party lines, the new interests of a growing 
country, and the ambition of younger statesmen gave rise to 
new party divisions. John Quincy Adams was Secretary of 
State under Mr. Monroe. He was originally a Federalist, but 
had supported the late war and was in favor of internal im- 
provements. He led a new party of Adams Republicans. 
William H. Crawford was at the same time Secretary of War. 
He was the leader of the old line Republicans, and obtained 
the congressional caucus nomination for President. Henry 
Clay had also been a Republican, but was now the eloquent 
and magnetic leader of a large following who favored a pro- 
tective tariff and internal improvements. He expounded the 
Constitution in accord with these measures. 

Andrew Jackson had been nominally a Republican ; he was 
the hero of New Orleans, and of a war against the Indians in 
Florida. He relied more upon his personal popularity in the 
Southwest than upon any policy in civil affairs. The scat- 
tered portions of the old parties, which had no distinctive 
theories of governmental policy, were greatly attracted to this 
new character in American politics, and they rallied around 
him under the name of Democrats. These four men were 
candidates for the presidency to succeed Mr. Monroe. When 
the electoral votes were counted, Mr. Jackson had 99, Mr. 
Adams 84, Mr. Crawford 41, and Mr. Clay 37. As no candi- 
date had a majority, the election devolved upon the House of 
Representatives, voting by states, each state having one vote. 



ANDREW JACKSON. 147 

Clay was the lowest in the list of four, and his name could 
not come before the House. His friends, however, united with 
those of Mr. Adams, who thus obtained the majority and be- 
came President. Mr. Adams was a man of unusual ability 
and attainments, of impressive eloquence, of great patriotism, 
and also of great prejudices ; but his prejudices were usually 
directed against the men and measures that he conceived to be 
opposed to the welfare of the nation. His ideal of his duty as 
chief magistrate was a severe and noble one. He would serve 
the nation for the nation's welfare, and no considerations of 
personal or party advantage would swerve him from his sense 
of the fit and becoming. His administration was marked by 
the excitements which attended the formation of new political 
combinations, and the struggles of contending rivals for future 
supremacy. With the exception of the refusal of the State of 
Georgia to recognize the right of the United States to enforce 
treaty obligations with the Indian nations in that state — of 
which I shall speak hereafter — his administration was wise 
and happy. But the star of Andrew Jackson was in the as- 
cendant, and Adams retired at the end of one term. 

With the accession of Jefferson the reign of the masses be- 
gan. With the accession of Jackson the masses placed one 
of themselves in the presidency. All the previous presidents 
had had large experience in public affairs, and with the ex- 
ception of Washington, all had been men of high scholastic 
culture. 

Andrew Jackson was a curiosity even among American 
politicians. Our population had been greatly swollen by im- 
migration. The native and the immigrant, who lied the civ- 
ilization of the Atlantic coast to carve out new states from 
the wilderness and prairies of the West, formed a rough, 
brave, impulsive, and generous people. Jackson was the prod- 
uct of this mixed civilization. The victor at New Orleans 
and of many an Indian fight, he became the hero of the fron- 
tiersmen. He held about the same relative rank among the 
statesmen of the age that the dime novel of our times holds in 
our literature — strong enough to capture an active and un- 
tutored imagination. He had learned to read and write, was 
unable to make a connected speech, but had an imposing 



148 CONSTITUTIONAL HISTORY. 

command of short sentences, positive, energetic, and denun- 
ciatory. In pursuit of an end he marched directly towards 
it, crushing obstacles, seizing means, and compelling success. 
He was patriotic and honest in his feeling, with a sense of 
honor, somewhat peculiar, but to which he held as his guide, 
though he was liable to be duped by the flatterers who in- 
flamed his prejudices and inflated his vanity. His capacity 
was small to distinguish between fair opposition and dishonest 
intrigue, and he hated a contention which was conducted by 
argument instead of blows. His daring and brilliant military 
exploits gave him a national reputation. Presidential nomi- 
nations had long been dictated by congressional caucuses at 
Washington, and popular sentiment had at last been aroused 
to resist such dictation. 

The frontiersmen placed Jackson in nomination, as their 
tribute to their idol and their protest against caucus dictation. 
The nomination was at first regarded at the East as the ex- 
travagance of the frontier, but the election disclosed that 
Jackson stood highest at the polls. The division in the elec- 
toral vote threw the election into the House of Representa- 
tives, and John Quincy Adams was chosen. But the popular 
tide thenceforth steadily rose, and at the next election bore 
Jackson into the presidency. He brought to the office all the 
faults and merits of his qualities. His methods were irregu- 
lar, his conceit unbounded, but his intentions were honest and 
patriotic. He was easily duped but never intimidated. He 
was no demagogue. If he ever deceived the people it was 
because he mistook the false for the true. He administered 
the government as if it were his personal estate. His admin- 
istration was a new era in politics. He made and destroyed 
statesmen, characters, and institutions, gave his name to his 
party, and designated his successor. Unwise and dangerous 
as he was, there was a certain majesty of heroic greatness in 
his character that enabled him to lead captive in his train 
greater men than himself, and to secure an acclaim of per- 
sonal admiration and devotion, such as writers of romance tell 
us the Highland clansmen accorded to their warrior chiefs. 
And it must be conceded that his weaknesses and failings, his 
passions and prejudices, were relieved and ennobled by a patri- 



THE RIGHTS OF THE MASSES. 149 

otic stubbornness, and by a passionate devotion to the Union. 
He was mercilessly ridiculed by his enemies, and extrava- 
gantly praised by his friends. With the masses this praise 
was sincere ; but sycophants were not lacking, who bartered 
their self-respect for official thrift. It may be well enough 
to have had one such President as Jackson, in order to fix in 
history a typical picture of the man whom the masses of his 
generation most delighted to honor. 

He wrought one change as great as if effected by a consti- 
tutional amendment. Hitherto men had held office under 
executive appointment, usually so long as they performed 
their duties satisfactorily. But, under Jackson, the offices 
became the spoils of victory, and have substantially continued 
so ever since. Henceforth politics became a sort of game for 
the personal advantage of the player, and the state furnished 
the stakes to be won. This decline in the tone and standard 
of the public service seems, however, to have been the natural 
result of the accession of the masses to power. Jackson him- 
self was the first fruits of the new era. The army of aspir- 
ants for place and pay rushed in swarms to Washington upon 
his first inauguration. Strange to say, the public service did 
not decline so much as did the public servants. The public 
offices were filled with Jackson's personal friends and admir- 
ers ; men who shouted for Jackson and an appropriation. 

The s}^stem then begun has* continued ever since. Low as 
the motives and character of the spoilsmen have been who 
have forced their way to the public crib, the official service of 
the nation has in the main been well performed. Two rea- 
sons may be assigned for this. Official duty is prescribed by 
law, and routine and system prevail ; the spoilsman is looking 
for the spoils, and not to betray or destroy his country, and 
hence is generally found upon the side of regularity and good 
order, and not unusually upon the side of reform, so long as 
reform exhausts itself by passing resolutions and making 
speeches. If we regard government as a machine, it is found 
that the spoilsmen become expert machinists, and generally 
keep the machine in the performance of its appointed func- 
tions. It cannot be denied that the spoilsman is the natural 
product of a constitutional government, based upon universal 



150 CONSTITUTIONAL HISTORY. 

suffrage. Any one can appeal to the masses for election to 
the highest office, or if he does not wish to be a candidate 
himself, he may become such an organizer and manager of 
votes as to exact terms from the candidates, and hence ob- 
tain by appointment the place, and power, and emolument 
which he seeks. Our real protection against the evil ought 
to be in the public intelligence and virtue. To some extent 
we have this protection. The career of the spoilsman is usu- 
ally short, for he is generally ejected, when detected and 
publicly exposed. But the accomplished demagogue usually 
has the art to conceal his art and motives. Our protection 
against him is in the Constitution and laws. To be successful, 
he must profess the utmost devotion to them ; they are an 
essential part of his existence. Indeed, he may serve his 
country well ; if he does, his motives, as well as his more vir- 
tuous competitors whom he has distanced, stand eclipsed in 
the shadow of his success. The Constitution and laws thus 
reduce the danger to a minimum. 

This influx of demagogism in Jackson's administration 
alarmed the old-school statesmen. Calhoun, speaking the 
sentiments of many, thus denounced it : — 

" When it comes to be once understood that politics is a game ; that 
those who are engaged in it but act a part ; that they make this or 
that profession, not from honest conviction or intent to fulfil it, but 
as a means of deluding the people, and through that delusion to ac- 
quire power, — when such professions are to be entirely forgotten, 
— the people will lose all confidence in public men ; all will be re- 
garded as mere jugglers, the honest and patriotic as well as the cun- 
ning and the profligate ; and the people will become indifferent and 
passive to the grossest abuses of power, on the ground that those 
whom they elevate, under whatever pledges, instead of reforming, 
will but imitate the example of those whom they have expelled." 

President Jackson smote the United States Bank with his 
veto, and it withered and died. He was denounced by his 
enemies for his abuse of the veto power. He had the consti- 
tutional right to use it. Our later experience is that the veto 
power is frequently used, is a most wholesome restraint upon 
bad legislation, and ought to be used more frequently. 

In furtherance of his crusade against the bank, he required 



REMOVAL OF THE DEPOSITS. 151 

the Secretary of the Treasury to withdraw from it the funds 
of the United States, deposited with it in pursuance of the 
law, but subject to removal in the discretion of the Secretary. 
The Secretary, required to report to Congress only, refused, 
and the President removed him and appointed another, who 
complied. Party spirit ran high, and the Senate passed a 
resolution to the effect that the President, " in his proceed- 
ings in relation to the public revenues, had assumed upon 
himself power and authority not conferred by the Constitu- 
tion and laws, but in derogation of both." Jackson replied 
in a protest which he demanded should be entered upon the 
journal of the Senate. The Senate refused to enter his pro- 
test. Three years later the resolution of censure was ex- 
punged from the records of the Senate. 

These events caused great excitement. The President had 
the constitutional power to remove the Secretary of the Treas- 
ury, and appoint another in his place. Whether it was a 
wise, or an arbitrary act for him thus to control the acts of 
the officer who was governed by the laws, and obliged to 
report to Congress, is a debatable question. He in effect 
thus controlled the disposition of the public funds. The con- 
stitutional power to do this, even in this indirect way, was 
plainly his. The Senate had no constitutional authority upon 
which to base its resolution of censure. The President is not 
in any way subject to the discipline of Congress, until he 
shall have been impeached by the House of Representatives. 
It had the physical power to pass the resolution, just as it 
might pass a resolution of compliment or of sympathy. The 
subsequent expunging resolution violated the integrity of its 
journal of proceedings, which the Constitution requires it to 
keep. All these proceedings may now be regarded as effer- 
vescences of partisanship, instead of authoritative precedents 
of constitutional construction. 

The protective. tariff now became the chief object of polit- 
ical attention. Prior to the war, New England was in favor 
of free trade, for her shipping interests thereby throve the 
better. Our supplies of manufactured goods were largely re- 
ceived from England. In a month after the declaration of 
the War of 1812, the duties upon imported foreign goods were 



152 CONSTITUTIONAL HISTORY. 

increased 100 per cent. Under the stimulus of this duty, 
manufacturing increased with great rapidity. After the peace, 
President Madison, in his message to Congress, recommended 
the consideration of means to preserve and promote manu- 
factures, which he said " have sprung into existence and at- 
tained an unparalleled maturity throughout the United States 
during the European wars. This source of national wealth I 
anxiously recommend to the prompt and constant guardian- 
ship of Congress." In 1816 Congress lowered the duties to 
what was supposed to be a peace basis. The importation of 
goods increased from $12,000,000 in 1811 to $121,000,000 in 
1819. New England, however, favored the return to free 
trade after the war, and the South opposed. Under the tariff, 
New England developed such manufacturing interests that 
she changed her position, and now demanded its continuance. 
The South also changed her position and demanded free trade 
and opposed the tariff. Both sections were true to their 
interests. Webster began his career in Congress as a free 
trader. Calhoun began his a few years later as an advocate 
of a protective tariff. Each one was compelled by events to 
reverse his position. Webster had to take care of his con- 
stituents, who had embarked in manufactures upon the faith 
of the tariff ; and Calhoun in the end had to oppose the tariff, 
because his constituents sold their cotton and bought their 
manufactured goods. They came to feel that if the price of 
everything they bought was increased by a duty, then their 
agriculture was taxed in order that the manufacturer might 
thrive. 

It is interesting to notice that in 1790 a tariff for the pro- 
tection of cotton goods was laid. Mr. Burke, a representa- 
tive from South Carolina, stated in Congress in 1789 that 
the raising of cotton was in contemplation, and if good seed 
could be obtained he thought it might prosper. 

The peace tariff of 1816 was so adjusted as to extend pro- 
tection to the interests developed by the war ; the South sup- 
ported it as an act of justice to the North, and somewhat, no 
doubt, to conciliate the section so greatly exasperated by the 
war. The constitutional argument was then waived, or was 
not regarded as valid. The tariff was supported by many as 



THE PROTECTIVE TARIFF. 153 

a temporary act, to be superseded by one better adjusted to 
every interest, after the country should have sufficiently re- 
covered from the losses and disturbances of the war. But the 
manufacturing interests developed by protection demanded 
that the protection should continue. In 1824 Mr. Clay, who 
had made protection to American industry the chief feature 
of his political policy, had the address to procure the passage 
of an act to increase and extend the tariff. The South be- 
came angry. Its cotton production had grown to be enormous. 
As the Constitution prohibited any duties upon exports, it 
was plain that the South could grow rich if it should not 
have to pay too high prices for the goods it bought. 

The fact was, it was gradually falling in debt ; in short, be- 
coming poorer. This state of things was charged to the pro- 
tective tariff, which increased the price of very many articles 
which the South consumed. Whether those articles were 
purchased abroad or from the North, the result was the same 
to the purchaser ; because in the one case the duty went to the 
government, and in the other it enabled the northern manu- 
facturer to get a higher price. In the colonial condition, the 
southern colonies were rich, and the northern poor. But in 
1824 and later, it was seen that the Northern States had be- 
come rich and the Southern poor. It was plain to be seen 
that in the North the cities had grown to be great, and were 
believed to be rich, while those at the South had declined. 
The North became a money lender to the South, and southern 
planters made journeys to the North to borrow money upon 
their patrimonial estates. All this, too, as Benton in his 
" Thirty Years' View " expresses it, in face of the fact that 
southern exports since the Revolution had amounted to the 
sum of eight hundred millions of dollars, a sum equal to the 
product of the Mexican mines since the days of Cortez. 

The South charged this result upon the tariff ; it had been 
drained that the North might thrive. In 1828 another revision 
and extension of the tariff took place. The South charged 
that this was brought about by the agency of New England, 
in order to gratify the cupidity of her wealthy manufacturers. 
Public meetings were held in South Carolina, and the indig- 
nation and anger of her people were freely expressed. The 



154 CONSTITUTIONAL HISTORY. 

constitutional argument now received prominence. The eighth 
section of the first article declares that " Congress shall have 
power to lay and collect taxes, duties, imposts, and excises, to 
pay the debts and provide for the common defence and gen- 
eral welfare of the United States." That is, as urged by the 
South, it could impose duties solely for the purposes of rev- 
enue, to pay the debts and expenses of the government, and 
to provide for the general welfare ; therefore, since no other 
purpose was expressed, Congress could impose duties for no 
other purpose; certainly not for the purposes of protection, 
when the power is only given for revenue ; clearly, also, this 
was opposed to the general welfare, since while it benefited 
one section, it injured another. It is now settled that where 
the power is given to Congress to do an act, such as to lay 
duties, the courts will not inquire into the purpose. But it is 
just as much the duty of Congress as of the courts to decide 
correctly, and if the only power conferred upon Congress is 
to lay duties for the purposes of revenue, it is clearly wrong 
for that body to lay duties for the primary purpose of protec- 
tion. Congress should not take advantage of the fact that the 
courts have not the power to interfere. 

There was another reason why South Carolina insisted upon 
a tariff for revenue only, but prominence was not given to it. 
Protection to home manufactures gave the North increased 
population, and thus a larger representation in Congress. It 
extended the field of white men's labor, and thus increased 
the natural enemies of slave labor, and of the system which 
degrades labor. A tariff for revenue only, if framed by slave- 
holders, would be laid upon articles which home industry 
could not produce, such as tea, coffee, and spices. Thus, 
white laborers and voters would not be multiplied so fast at 
the North, and necessary articles of consumption could be 
bought of the foreign producer for the least money. A tariff 
for revenue only would lessen a peril to slavery and save 
money to the slave-holder. 

We can readily understand that the people of South Caro- 
lina, under the lead of such able men as Calhoun and Hayne, 
accepted their construction of the Constitution, and believed 
that a protective tariff was an inexcusable outrage. The state 



THE NULLIFICATION ARGUMENT. 155 

had recourse to the famous Kentucky and Virginia Resolu- 
tions of 1798. A convention was called in which the people 
were invited to assert their rights. Their leaders asserted the 
right of nullification. The South Carolina doctrine of nullifi- 
cation was an alleged application of the doctrine of the Ken- 
tucky and Virginia Resolutions. The claim was that under 
the Constitution a state has the right to judge respecting the 
constitutionality of an act of Congress, and if it decide it to 
be unconstitutional, to nullify it. The argument upon which 
this claim rests may be briefly stated. 

The Constitution is a compact between the states; the 
states were the parties making the compact ; the United 
States was brought into being as the creation or creature of 
the compact, not a party to it, but an agency appointed by it 
to exercise only the powers delegated by the states to the 
agency, and hence the parties, authorizing by the compact 
the agency, have the power to judge whether the agency ex- 
ceeds the delegated powers, and if so to repudiate such unau- 
thorized action, and nullify it. That the Constitution is a 
compact between the states was, in addition to the historical 
argument, made to rest upon the eighth article of the Consti- 
tution, which says : " The ratification of the conventions of 
nine states shall be sufficient for the establishment of this con- 
vention between the states so ratifying." It is thus shown to 
have been established by ratification of states, and between 
states, and hence a compact between them. The United 
States could be in no sense the superior of the states, because 
the creature of the compact, and hence only existent under 
the compact, and destitute of all powers except those con- 
ferred by it. This was also shown by the tenth amendment 
to the Constitution, which provides that " The powers not 
delegated to the United States by the Constitution, nor pro- 
hibited by it to the states, are reserved to the states respec- 
tively or to the people." This, it was urged, is an explicit 
declaration that the Constitution confers upon the United 
States the powers enumerated in it, and withholds all others. 
In case of an alleged usurpation by the United States of 
powers not delegated, each state has the right to judge re- 
specting the usurpation, because, as it was urged, each state is 



156 CONSTITUTIONAL HISTORY. 

a sovereign state and an equal party to the compact, and can 
have no superior ; and not only has an equal right with every 
other state to judge, but, of necessity, must exercise that right, 
since no other competent judge exists. The United States 
cannot be the judge, since it is an inferior, being the mere 
creature of the compact, and in no sense a sovereign over the 
states, but merely an agent for the states in certain enumer- 
ated particulars. In case of an alleged usurpation of powers 
by the United States, palpable and dangerous, the state has 
the right to interpose and arrest the action of the United 
States, because some remedy is necessary, and no other exists. 
It thus stops aggression and usurpation, and admonishes its 
creature and agent to retire within its rightful powers. An 
agent can only use his delegated power for the benefit of his 
principal and never against him ; the delegation of power is 
not its surrender, and if the principal resumes it, he simply 
resumes his own. 

Nullification had been suggested by Kentucky in 1799 as a 
proper remedy. It was now said to be a proper remedy. It 
must be declared by a convention of the people of a state 
properly represented by delegates. Nullification is but the 
solemn declaration of the people that the act is null, which 
without such a declaration is already null per se. It was not 
quite clear what the further action of the state should be, if, 
notwithstanding the nullification, the United States should 
persist in its alleged usurpation. Mr. Madison, who was still 
living, said nothing further was contemplated by the Virginia 
Resolutions in 1798, than respectfully to remonstrate against 
the alien and sedition acts, and to procure either their repeal 
by Congress, or to secure the cooperation of other states and 
procure an amendment of the Constitution. John Taylor of 
Caroline said that, " The appeal is to public opinion ; if that 
is against us we must yield." So understood, the doctrine 
now called Nullification had been the accepted creed of the 
anti-federalist or republican party from 1798. As thus un- 
derstood, it seemed to be maintainable within the Constitu- 
tion ; but under the pressure of practical nullification in 
South Carolina, it was plain that the logical result of the 
doctrine, in case the United States should refuse to recede, 



THE ANTI-NULLIFICATION ARGUMENT. 157 

must be the secession of the state, or coercion by the United 
States. Secession was logical, for if the doctrine of compact 
was sound, then, when the compact was broken, the state 
was released from it. The real end therefore of the compact 
theory was secession and dissolution of the Union. But South 
Carolina said she did not propose to secede ; she meant to 
remain in the Union, and thus enjoy its benefits and repudi- 
ate its burdens. Such a position was indefensible. 

Meanwhile another line of reasoning and argument had 
been brought out and adopted by the Supreme Court under 
the leadership of its Chief Justice, John Marshall. In the 
grasp of his intellect, the clearness of his understanding, the 
acuteness and accuracy of his analysis, and the solidity and 
strength of his demonstration, the great Chief Justice is now 
acknowledged as the master of constitutional discussion. Mr. 
Webster was entirely familiar with his weighty judgments. 
He had contended at the bar for the principles announced 
from the bench, and he said in the great debate with Mr. 
Hayne in the Senate in 1830, " It is a subject of which my 
heart is full." In this debate he advanced the line of argu- 
ment which was ultimately to prevail. No speech delivered 
in America has more renown. As a study of lofty, com- 
manding, and genial eloquence, it remains a masterpiece. 
Our countrymen are copious in oratory, but durable speci- 
mens are rare. We praise our orators, but seldom quote 
them. Mr. Webster's speech upon this occasion was the be- 
ginning of a revolution in the public mind of the construc- 
tion of the Constitution. He boldly combated the accepted 
construction, and in the judgment of posterity overthrew it. 
Mr. Blaine, in his " Twenty Years in Congress," states that 
" the speech of Webster upon that occasion had the force of 
an amendment to the Constitution. It corrected traditions, 
changed convictions, revolutionized conclusions. It gave to 
the friends of the Union the abundant logic which established 
the right and power of the government to preserve itself." 

The principal points of his constitutional argument were : 
The Constitution is not a compact or league among the states ; 
it is a constitution ; a constitution is fundamental law. It 
was not made by the states, but by the people, and is there- 



158 CONSTITUTIONAL HISTORY. 

fore the fundamental law of the people. Its language is, 
" We, the people of the United States, do ordain and estab- 
lish this Constitution." Being the fundamental law, there 
can be no law or act of any state superior to it, else it would 
not be fundamental. It declares its own superiority in these 
words (Art. 6, Sec. 2) : " This Constitution, and the laws of 
the United States which shall be made in pursuance thereof, 
and all treaties made or which shall be made, under the au- 
thority of the United States, shall be the supreme law of the 
land ; and the judges in every state shall be bound thereby, 
anything in the Constitution or laws of any state to the con- 
trary notwithstanding." 

The states are sovereign only with reference to each other, 
and then only so far as their sovereignty is not affected by 
this supreme law. But the states derive their power from 
the people, and in so far as the people have given the higher 
power to the United States, no state can question it. Both 
the United States and the states deriving their power from 
the people, the people had thus given to the United States, 
and not to the states, the power to decide any case of alleged 
infraction by the United States of the power of the states, 
and likewise any infraction by the states of the power of the 
United States. That power to decide is, in some cases, Con- 
gress, and in others, the judicial power of the United States. 
The language is: "The judicial power of the United States 
shall extend to all cases in law or equity arising under this 
Constitution and the laws of the United States." The peo- 
ple, therefore, by the Constitution have created the tribunals 
to decide, the Supreme Court in all cases between litigants, 
Congress in all political cases, not the subject of judicial 
decision. The Constitution of the United States created a 
government of the people, for the people, over the people ; 
not of the states, for the states, over the states. Within its 
granted powers it binds all wherever they are. Now, if this 
government admits the right of any to disobey, it surrenders 
its right to govern them, and therefore as to them ceases to 
be a government. Hence government must necessarily imply 
the right to compel obedience, to subdue resistance, here, 
there, everywhere. It cannot keep that power, if, outside of 



WEBSTER'S PROPOSITIONS. 159 

itself, there exists the acknowledged power to decide upon 
the rightfulness and authority of its own acts. Being a gov- 
ernment, it must have the power to prevent or overcome any 
act which seeks to set it aside ; for the defence of its own ex- 
istence is the prime necessity. Being a government of the 
people, by the people, for the people, it binds all the people. 
If the state has equal power with the United States to decide 
upon any question of infraction by the United States of the 
Constitution, then, whenever it shall decide that question in 
its own favor and enforce its decision, the inevitable result 
must be the supremacy of the state over the United States, 
and consequently the destruction of the United States. 

Mr. Webster subsequently formulated the results of his 
argument in four propositions, which I quote : — 

" 1. That the Constitution is not a league, confederacy, or compact 
between the people of the several states in their sovereign capaci- 
ties ; but a government proper, founded on the adoption of the peo- 
ple, and creating direct relations between itself and individuals. 

" 2. That no state authority has power to dissolve these relations ; 
that nothing can dissolve them but revolution ; and that consequently 
there can be no such thing as secession without revolution. 

" 3. That there is a supreme law, consisting of the Constitution of 
the United States, acts of Congress passed in pursuance of it, and 
treaties ; and that in cases not capable of assuming the character of 
a suit in law or equity, Congress must judge of and finally interpret 
this supreme law, so often as it has occasion to pass acts of legisla- 
tion ; and in cases capable of assuming, and actually assuming, the 
character of a suit, the Supreme Court of the United States is the 
final interpreter. 

" 4. That an attempt of a state to abrogate, annul, or nullify an 
act of Congress, or to arrest its operation within her limits, on the 
ground that in her opinion such law is unconstitutional, is a direct 
usurpation on the just powers of the general government, and on the 
equal rights of the other states, a plain violation of the Constitution, 
and a proceeding essentially revolutionary in its character and ten- 
dency." 

It may appear strange to us, but the bold annunciation by 
Mr. Webster that the Constitution is the work of the people, 
and not of the states, was received with a sort of horror by 
the party opposed to him, as a new and dangerous heresy. 



160 CONSTITUTIONAL HISTORY. 

But thenceforth this position was the vantage-ground from 
which the weapons of assault were directed against the heresy 
of nullification. It must be conceded, however, that the Su- 
preme Court of the United States was not the arbiter ap- 
pointed to decide upon an important point in dispute between 
South Carolina and the United States, namely, the constitu- 
tional power of the United States to lay duties for the pur- 
poses of protecting American industry against foreign compe- 
tition. There is no practicable way to present this question 
to the court, unless Congress shall, in an act levying duties, 
declare the sole purpose of the levy to be to protect Ameri- 
can industry. In such case an individual, upon refusing to 
pay the duties, could bring the question before the court. Mr. 
Calhoun, it is said, desired that some bill, so framed, should 
be passed, but of course any bill levying duties is in some 
sense a revenue bill, and under color of this fact it was easy 
to evade any compliance with Mr. Calhoun's request. 

South Carolina, in 1830, passed a bill authorizing the peo- 
ple to call a convention to nullify, in that state, the obnoxious 
tariff acts. The proposition to call a convention was sub- 
mitted to the people, and at first failed to command sufficient 
votes. 

Following that failure, South Carolina was bantered by the 
Protectionists, and was threatened by President Jackson. The 
nullifiers thought to turn public opinion in their favor by the 
toasts and speeches to be delivered at a dinner in Washington 
in 1830, on Jefferson's birthday. President Jackson was in- 
vited, and it was hoped to commit him to the nullification 
utterances of the managers. The regulation toasts were pre- 
pared to honor Jefferson as the father of the doctrine, but 
Jackson confounded the managers by giving the toast, " Our 
Federal Union ; it must be preserved." Never was a toast 
more efficient. If the Democratic party was marching towards 
nullification, that toast called a halt which was promptly 
obeyed. 

In 1832 another tariff act was passed by Congress, and 
under the indignation caused by this supposed increase of in- 
jury, the nullifiers commanded the popular vote. In October 
of that year the famous convention was ordered. A conven- 



THE ORDINANCE OF NULLIFICATION. 161 

tion properly convened is the assemblage of the people and of 
the state, and possesses all the powers reserved to both. The 
state is but the creation of the people, the legislature but one 
of the organs of the state ; and hence both state and legisla- 
ture combined fail to wield all the powers of the people. It 
was therefore thought proper to have the people assemble in 
convention. The convention duly assembled. It adopted an 
ordinance styled " An ordinance to nullify certain acts of 
Congress of the United States, purporting to be laws laying 
duties and imposts on the importation of foreign commodi- 
ties." The fallacy of the mere nullification position was 
practically conceded, and the state advanced to the more log- 
ical position of threatened secession. 

This ordinance purported to sweep out of existence, so far 
as South Carolina was concerned, every vestige of a national 
tariff. It went further ; it declared that " the people of the 
state would henceforth hold themselves absolved from all fur- 
ther obligation to maintain or preserve their political connec- 
tion with the people of the other states, and would proceed 
forthwith to organize a separate government, and do all other 
acts and things which sovereign states may of right do." The 
ordinance, prudently, was not to take effect until three months 
later. This time was given, not only to enable the state to 
get ready for the new order of things, but to give other states 
an opportunity to join with South Carolina, and also in the 
hope that the United States would recede. The convention 
issued an address to the public styled an " Exposition," in 
which the case of the state is set forth with great eloquence 
and force. 

On the 10th of December, 1832, President Jackson issued 
his proclamation, denouncing this attempt of South Carolina 
to nullify the laws of the United States, and, following the 
line of Mr. Webster's great argument, showing the supremacy 
of the United States, exhorting the state to recede, and threat- 
ening coercion and punishment in case of any resistance to 
the execution of the laws of the United States. The Presi- 
dent closed by saying : " The laws of the United States must 
be executed : I have no discretionary power on the subject. 

My duty is emphatically pronounced in the Constitution. 
11 



162 CONSTITUTIONAL HISTORY. 

Those that told you that you might peaceably prevent their 
execution deceived you. Their object is disunion, and dis- 
union by armed force is treason. Are you ready to incur its 
guilt? If you are, on your unhappy state will fall all the 
evils of the conflict you force upon the government of your 
country." 

Mr. Calhoun was at this time Vice-President. He resigned 
that office and was immediately elected by South Carolina to 
the United States Senate. Governor Hayne of South Caro- 
lina issued a counter proclamation, warning the people of the 
state not to be seduced from their primary allegiance to the 
state by the " pernicious and false doctrines of the Presi- 
dent." 

It is said that Jackson intended to have Mr. Calhoun ar- 
rested for treason ; but if that was true, he was dissuaded 
from the purpose. He promptly caused United States troops 
to be thrown into Fort Moultrie in Charleston harbor, and a 
sloop of war was sent to that harbor for the purpose of aiding 
the United States revenue officers, if aid should be needed, in 
collecting the revenue. Congress assembled the first Monday 
of December. Bills were introduced and passed, authorizing 
the President to use what force might be necessary to execute 
the laws ; and then the laws were executed. At the same 
time bills were introduced to reduce the tariff. A desire to 
conciliate South Carolina was strongly prevalent in Congress. 
Clay and Calhoun, the two champions of the opposing sys- 
tems, came together and concocted a bill, which proposed a 
reduction of the tariff, to be gradually effected in the course 
of ten years. It was hoped that all interests, both of the 
manufacturers of the North and the cotton producers of the 
South, would be preserved unharmed. Mr. Clay, it was said, 
was afraid the Union would be dissolved ; Mr. Calhoun, some 
said, was afraid Jackson would hang him. The compromise 
measure, as it was called, encountered bitter opposition, espe- 
cially from New England. Webster truly said, it would be 
yielding great principles to faction ; that the time had come 
to test the strength of the Constitution and the government. 
Davis, also senator from Massachusetts, said, " You propose to 
sacrifice us to appease the unnatural and unfounded discontent 



THE THEORY OF COMPACT. 163 

of the South, — a discontent, I fear, having far deeper root 
than the tariff, and will continue when that is forgotten." 
Benton pointed out the absurdity of one Congress attempt- 
ing to bind another. Nevertheless, the bill passed ; South 
Carolina claimed to have won the victory; repealed her se- 
cession ordinance ; and compliance with the laws was never 
suspended. 

Looking back over the period of fifty years, it is scarcely 
to be doubted that the compromise, s6 far as it was designed 
to avert the necessity to enforce the laws of the United States, 
was a great mistake. South Carolina then stood practically 
alone. True, the states of Virginia, Georgia, and Alabama 
passed resolutions of sympathy and approval, and gave some 
assurance that they would join her in forming a Southern 
confederacy. North Carolina emphatically repudiated her ac- 
tion. Jackson had the nerve and vigor to put down the 
rebellion. He hated Calhoun ; he was eager for the fight ; 
and but for the compromise, the integrity of the Union might 
have been maintained, and the heresy of secession crushed, at 
a tithe of the expenditure of blood and treasure which it cost 
thirty years later. 

Respecting the merits of the South Carolina or secession ar- 
gument, it must be conceded that the corner-stone upon which 
it rests, namely, that the Constitution is a compact between 
sovereign states, and that the government of the United States, 
or, as Calhoun expressed it, of the states united, is the creature 
of that compact, is, as a mere academic disputation, strongly 
supported. It had the support of the great authority of Jeffer- 
son and Madison, and was scarcely contested in Congress until 
Webster hurled the massive weight of his eloquence and 
argument against it in 1830. Nor is his proposition that the 
government of the United States is a government formed by 
the people wholly unassailable. The truth is that he gave 
to the preamble of the Constitution, and to the fact that it 
was adopted by conventions of the people in the several states, 
a weight which the facts of history scarcely justified. The 
confederate Congress was jealous of the convention which 
framed the Constitution. The convention did not expect 
Congress to approve a constitution which put a period to its 



164 CONSTITUTIONAL HISTORY, 

power and existence. The convention saw, in conventions 
called in the several states for the purpose, a better prospect of 
the adoption of the Constitution than in the several legisla- 
tures, elected for other purposes, and naturally jealous of the 
state-rights and powers which the Constitution would restrict. 

The phrase " We the people of the United States," in the 
preamble, was originally followed by the words " of New 
Hampshire, Massachusetts," etc., naming the thirteen states ; 
but as the Constitution was to become valid between nine 
ratifying states, and as it was possible that no more would 
ratify it, the names of the states were stricken out, so as to 
adapt it to nine or more, as the case might be. But Webster's 
main proposition that, whether formed by states or people, a 
government was established supreme over all the people of 
all the states with respect to its enumerated powers, was thor- 
oughly unassailable ; that as such it was the final judge of its 
own powers, subject only to compulsory correction by the peo- 
ple by amendment of the Constitution, was equally unassail- 
able. It seems probable that the framers of the Constitu- 
tion, in preparing the ratification article, employed a careless 
form of expression, not quite consistent with the whole 
scheme. If they had said, " shall be binding between the peo- 
ple of the states," the nullification argument would scarcely 
have had a shred of support in the Constitution itself. It is 
easy to believe that that is what they meant. When, there- 
fore, the consequences of the nullification argument were seen 
to be secession and disunion, the devotion of the people to the 
Union in effect added the missing words, " the people of," 
and preponderated the scale in favor of the Union. They 
finally had to throw the sword into the scale, to amend the 
Constitution, if any amendment was needed. 

No amendment, however, was needed to confer the power 
to preserve the Union. The Constitution was made for the 
states united into one. The original thirteen states made the 
Constitution, but it in turn made the other states. The Con- 
stitution became the parent of more states than existed at its 
origin. The original thirteen states were practically one in 
national spirit before they made the Constitution, otherwise 
they never would have made it. The states subsequently 



VAN BUREN'S ADMINISTRATION. 165 

made from the common territory were glad enough to be 
admitted into the Union. The old state pride and sover- 
eignty of the charter members had little to feed upon in the 
new states. The spirit of nationality, — that common tie, 
which binds the people of one race, language, customs, coun- 
try, aspirations, sufferings, history, and liberty, together, — a 
tie stronger than any written constitution, because its creator 
and inspirer, its germ, nutrition, and vital principle, — sent 
forth the people of the Northern States to bring the Southern 
people back within the common household. There was no 
other place for them, no other way for us, without violating 
the promptings of blood and nurture. They had to come back, 
else in the course of time and nature we would have gone to 
them. The whip was in the hand, blood was up, but a kins- 
man's love was ready to forgive and forget in due time. The 
question of constitutional right was little more than a con- 
venient pretext after all. Human nature had its course, the 
wanderers came back, sullen at first, and why not ; for who 
before the smart is gone kisses the rod that smites him ? But 
they were glad enough in the end to get back where they 
belonged ; sadder but w T iser, and burying with time remem- 
brances unpleasant to preserve. 

The United States seemed to gain by the compromise which 
kept South Carolina in the Union, but it really lost. Mr. 
Calhoun always claimed that South Carolina had caused the 
United States to back down, and he was right. He devoted 
a large portion of the remainder of his life in applying his 
nullification doctrines to the rights of the states, respecting 
slavery and slave extension. He converted the South, and 
hence the rebellion of later years followed. 

We part with Andrew Jackson with this tribute to his 
memory : his denial of the right of South Carolina to secede, 
his assertion of the power and purpose of the United States 
to coerce her to submission, furnished a precedent, which 
made the assertion of the like power and purpose thirty years 
later less questioned and more commanding. 

Martin Van Buren succeeded Jackson in 1837. He stated 
in his inaugural address that the Revolution had been achieved 
at the period of his birth. He was a man of great ability, 



166 CONSTITUTIONAL HISTORY. 

capable of becoming a statesman, but his associations and 
aptitudes diverted him into the career of the adroit politician. 
He engaged early in the politics of his native state, and was 
apt in acquiring and employing the arts by which shrewd 
management takes precedence of meritorious service. Rap- 
idly acquiring place and distinction, he had the address to 
obtain the confidence of Jackson, and to defeat the presiden- 
tial aspirations of the statesmen, the fulfillment of whose am- 
bition Jackson's advent had already postponed. With Jack- 
son's favor he became heir in possession of the presidential 
mantle. 

Van Buren professed that he only sought to follow in the 
footsteps of Jackson. He had to encounter a great financial 
depression in the country, and the reproach of a national debt 
which this depression caused. The destruction of the na- 
tional bank and the insolvency of many other banks, by some 
of which the treasury lost large sums, led him to propose and 
procure the establishment of the Sub-Treasury of the United 
States. This was an excellent measure. It was bitterly 
opposed upon party grounds ; was repealed, but finally reen- 
acted ; and has long stood approved upon its merits. By it 
the government assumed the care and custody of its own 
funds. They had hitherto been exposed to loss by the 
insolvency of the banks in which they were deposited. The 
complete ascendency of " machine politics " was achieved in 
this administration. This fact and the financial distress ena- 
bled the newly named Whig party — the party favoring a 
national bank, internal improvements, a protective tariff, and 
a broader constitutional construction — to defeat Van Buren 
and elect William Henry Harrison, who, dying at the close 
of the first month of his administration, was succeeded by 
John Tyler. He was the first Vice-President thus promoted. 

President Tyler was ambitious to obtain by the votes of the 
people an extension of the power which accident had accorded 
him. Originally an Anti - Federalist and Democrat of the 
straitest school of constitutional construction, — a sympathizer 
with nullification, and foremost among the champions of state- 
rights, — his very narrowness had forced him into opposition 
to the expunging resolution which the followers of Andrew 



ANNEXATION OF TEXAS. 167 

Jackson made a test of party fealty, and constrained him to 
act temporarily with the Whigs of his state. While in this 
false position, the Whigs made him their candidate for Vice- 
President. He had no real sympathy with the men or the 
measures of that party, and when he became President he 
speedily reverted to his original proclivities. Twice he vetoed 
their bill to charter the national bank, and by other vetoes 
prevented their favorite measures from becoming laws. The 
rupture between him and the Whigs was complete. The 
Democrats profited by his apostasy, but recognized no obliga- 
tion to reward it. During Mr. Tyler's administration the 
annexation of Texas was practically accomplished. It forms 
an interesting chapter in our history. 

In 1763, at the close of the Seven Years' War in Europe 
and of the French and Indian War in America, France was 
compelled to sacrifice her American possessions. She ceded 
Louisiana to Spain. Since Spain already held the territory 
on the southwest, it was of little moment to her where the 
boundary line was fixed between her old and her new posses- 
sions. In 1800 Spain retroceded Louisiana to France, and 
in 1803 France ceded it to the United States. The western 
boundary was practically undefined. 

Before 1819 some Americans had attempted to establish 
colonies in Texas, but the Spanish government slaughtered 
the colonists, and broke up the settlements. In 1806 the 
Sabine River was provisionally agreed upon as a temporary 
boundary between the Spanish and American territory. By 
the treaty with Spain in 1819, by which we acquired Florida, 
the Sabine River was designated as the true boundary be- 
tween the two jurisdictions. Mexico revolted from Spanish 
control in 1821 and declared her independence. Texas and 
Coahuila together were organized as a Mexican state. Mean- 
time, one Moses Austin had obtained large grants of land, 
and about 1820 he attempted to organize a settlement. But 
so many of the people who were attracted thither by his 
promises were such desperate outlaws that the Mexican gov- 
ernment, in 1830, was constrained to forbid any more Amer- 
icans coming to Texas. Southern statesmen now began to 
fear that the slave power would ultimately lose its equality in 



168 CONSTITUTIONAL HISTORY. 

the number of states in the Union if more slave territory- 
should not be acquired, and they lamented the easy indiffer- 
ence with which our plausible claim to Texas under the Lou- 
isiana purchase had been flung away. Texas was compara- 
tively uninhabited. About 15,000 Indians were supposed to 
be sprinkled over its immense expanse of territory. A few 
Spanish missions had been established. A few Americans 
remained. These, freed from the restraints of government 
and civilization, conformed to the savage life of the Indians, 
and sometimes surpassed them in wickedness and ferocity. 
The Mexican government was weak, and distracted by revolu- 
tionary convulsions. Texas seemed to be one of the fairest 
portions of the earth and most abandoned by mankind. It 
attracted the cupidity of the speculator, and land companies 
were organized in the United States. They claimed to have 
obtained by governmental concessions large areas of fertile 
land, and they sold scrip which gave promise of title to the 
townships and farms, which were designated upon the attrac- 
tive maps of the companies. Adventurers procured this scrip 
and hurried to Texas, partly to speculate in their supposed 
acquisitions, and partly to enjoy the wild freedom of the 
plains. Glowing accounts were given, not altogether desti- 
tute of truth, of the bounties of tropical vegetation, of great 
herds of wild horses and buffaloes, and of the abundance of 
game. Under the Mexican government slavery was prohib- 
ited within its limits. 

Among others, whose imaginations were captivated by the 
charms of Texas, was Samuel Houston. His career was like 
a romance. Born in Virginia, he spent a portion of his youth 
as an adopted member of the Cherokee tribe of Indians. Es- 
caping, thence as he attained his majority, he studied law at 
Nashville, served as lieutenant under General Jackson in 
some of his Indian wars, and became successively a member of 
Congress, and the governor of Tennessee. But while he held 
the latter office, he suddenly resigned and returned to the 
tribe of his early adoption. He resumed the Indian dress and 
methods of life, and in 1833, with painted face and the garb 
of his tribe, he went to Texas. But he had previously been 
to Washington, and had held conference with men in high 



ANNEXATION OF TEXAS. 169 

position, with the speculators in Texas lands, and with states- 
men who were eager to reannex that abandoned territory to 
the United States. It soon became apparent that Houston's 
mission was to direct, as circumstances would permit, the 
nascent commonwealth on the way to annexation to the 
United States. Under the influences which he stimulated and 
fostered, the stream of emigration began to set its current 
towards the Southwest. Houston was soon able to organize 
a convention, which assumed to declare the independence of 
Texas. Mexico, under Santa Anna, attempted to subdue this 
revolt against her sovereignty, but in the battle of San Jacinto, 
in 1836, Houston led his little army of American recruits 
against the Mexican forces, won the victory, and made Santa 
Anna his prisoner. Thenceforth Texas maintained the sem- 
blance of an independent republic, with a constitution per- 
mitting slavery. The United States, which had secretly 
favored the movement, in 1837 openly acknowledged her 
independence. From that time down to 1815, Texas was in- 
directly encouraged by our government, and her annexation 
seemed to be near at hand. But Mexico did not renounce 
her claims to the country, and it was plain that our acquisi- 
tion of Texas would cost us a war. The Slave States were 
willing to incur the hazard. The purpose of the acquisition 
being apparent, the North refused to consent. 

President Tyler was anxious to accomplish the annexation, 
notwithstanding the opposing attitude of the North. James 
K. Polk was nominated for the presidency as the avowed 
champion of annexation. Circulation was given to the fiction 
that England was ready to intervene in favor of Texas against 
Mexico, upon condition that Texas would abolish and prohibit 
slavery. There were not many slaves in Texas, and the 
South became alarmed. Clay was the candidate of the Whigs, 
and did not object to annexation, if it could be accomplished 
honorably and peacefully. 

The anti- slavery party nominated a separate candidate, 
and diverted votes enough from Clay to elect Polk. Texas 
was then annexed and admitted to the Union, not by treaty, 
but by a joint resolution of Congress, which proposed terms 
and offered advantages which Texas was prompt to accept. 



170 CONSTITUTIONAL HISTORY. 

This was an irregular exercise of power under the Constitu- 
tion. Samuel Houston was the first chosen of the senators of 
the new state. 

Under the administration of President Polk, the war with 
Mexico followed. Our arms were successful, our claim to 
Texas established, and other territory wrested from Mexico. 
Thus the march of the empire of freedom went westward to 
the Pacific Ocean. Time glorifies the result, and gives obliv- 
ion to the means. The slavery question henceforth, and until 
the close of James Buchanan's administration, dominated over 
all others. The constitutional school of constructionists, who 
taught that in every question of constitutional power between 
the nation and the state the doubt should be resolved against 
the nation and in favor of the state, following the teachings of 
Mr. Calhoun, began to construe the Constitution so as to deny 
to Congress any power to exclude slavery from the territories. 
The question was of vast importance, especially in view of the 
accession of the immense territory gained by the annexation 
of Texas and by the Mexican War. 

We reserve the slavery question for the next lecture. Mr. 
Polk served only one term. He was a man of moderate 
ability, with a strong propensity to manage his administration 
with the least possible advice from others. His party did not 
care to renominate him. The Whigs now came into power 
under General Taylor. The Mexican War had made Taylor 
available. He knew next to nothing about civil administra- 
tion, and was uncertain before his nomination of his own polit- 
ical sympathies ; but after election, he felt that common fair- 
ness required him to stand by the Whigs and their measures. 
He certainly was firmly devoted to the Union, and was earnest 
in his assertions that, if there should be any need, he would 
take command of the army himself to preserve it. He died in 
the second year of his administration and was succeeded by the 
Vice-President, Millard Fillmore, — a Whig with pro-slavery 
proclivities. He was not a great man. We need not dwell 
here upon the administrations of Fillmore, Pierce, and Bu- 
chanan. In treating of the slavery question we shall say all 
that is needful. 

With the close of Buchanan's administration we part from 




DE TOCQUEVILLE'S PREDICTION. 171 

the Jeffersonian age of narrow constitutional construction, 
and enter upon the age of liberal construction, — an age in 
which the legacy of the teachings of Marshall and Webster 
becomes incorporated into our constitutional life. How great 
the slowly pervading influence of Marshall finally became 
will be explained in a subsequent lecture. The age we leave 
was one in which the nation practically existed, if not by the 
sufferance of the states, at least by the concessions of the na- 
tion to their jealous protests. The age we enter is one in 
which the nation boldly claims her own, and the states ac- 
knowledge the claim. The just self-respect of both nation 
and state, and the confidence which each has in the reciprocal 
justice and support of the other, place each beyond apprehen- 
sion from the other, and bind all together as respected and 
respecting members of a vast commonwealth. There is a gov- 
ernment of the United States ; there is a government of the 
separate states ; the one is as needful as the other, and neither 
would be the great and useful government that it is without 
the other. 

This is the ripened fruit of time and experience. In 1833, 
De Tocqueville, that philosophical observer of our institutions, 
said in his " Democracy in America " : — 

"I am strangely mistaken if the federal government of the United 
States be not constantly losing strength, retiring gradually from pub- 
lic affairs, and narrowing its circle of action. It is naturally feeble, 
but now it abandons even the appearance of strength. On the other 
hand, I thought I remarked a more lively sense of independence, and 
a more decided attachment to their separate governments in the 
states. The Union is desired, but only as a shadow ; they wish it to 
be strong in certain cases and weak in all others : in time of warfare 
it is to be able to concentrate all the forces of the nation and all the 
resources of the country in its hands ; and in time of peace its existence 
is to be scarcely perceptible ; as if this alternate debility and vigor 
were natural or possible. ... It may be predicted that the govern- 
ment of the Union will grow weaker and weaker every day." 

De Tocqueville saw clearly the main features of our system 
as operated upon a narrow national and a broad state gauge. 
The decay of the nation which he predicted would have been 
inevitable if the national gauge had not been broadened. 



172 CONSTITUTIONAL HISTORY. 

Under the policy of narrow construction, which prevailed 
from the beginning of Thomas Jefferson's administration until 
the close of James Buchanan's, the nation was scarcely felt, 
except in our foreign relations and our foreign commerce. 
How not to do anything was the study of the dominant 
statesmen in Congress. A national bank was twice created, 
but state jealousy would not suffer it to live beyond its ap- 
pointed limit of life. Great national roads and other internal 
improvements were projected, but state jealousy stifled their 
existence. The African slave-trade was declared by law to 
be a crime, but a nation, intimidated by the states, never pun- 
ished the violators. The solemn judgments of the Supreme 
Court were more than once thwarted by national subserviency 
to state domination. The empire west of the Mississippi was 
nearly lost by a too narrow construction of the Constitution. 
We point with just pride to the statesmen of that time. Clay, 
Webster, and Calhoun were great senators. But they con- 
structed nothing. They contended like giants over the lim- 
itations of the Constitution. But of what great measure was 
either the founder ? Calhoun may have a claim to the grati- 
tude of posterity for his services in the annexation of Texas. 
We owe Webster a debt of gratitude for his convincing and 
valuable exposition of the true construction of the Constitu- 
tion, — a debt which posterity is loyally paying. Clay, of all 
the long line of our statesmen since Hamilton, had the most 
constructive genius. He proposed measures. He would create, 
establish, organize. But the Constitution, as it was then con- 
strued, stood in his way and baffled him and defeated his 
measures. No fault of his or theirs. Possibly the constitu- 
tional barriers developed their powers. It was an age of the 
practical settlement of constitutional limitations. Posterity 
is the wiser for their efforts, if not the heir of their measures 
achieved. 

The constitutional barrier has been by no means broken 
down ; it has been pushed out in some directions far enough 
for the nation to defend itself and to exercise a fuller meas- 
ure of its powers. It still stands in the way of all construc- 
tive statesmen who seek to create or to find new fields for the 
national energy. The nation can never do the work of the 



EFFECT OF CONSTITUTIONAL RESTRAINTS. 173 

states, nor the work which the states separately are compe- 
tent to do. The states have a hundred powers to the nation's 
one. Mr. Seward recognized the narrow field of the nation 
for constructive activity. He sought to rescue his name from 
oblivion by making Alaska his monument. General Grant, 
enduring as his fame seems to be, turned his eyes towards 
San Domingo. Mr. Chase revived the scheme of a national 
bank, and expanded it into a great system of national banks. 
And yet, it may be gravely doubted, whether the nation has 
any power to create and locate a corporation within a state. 
The usefulness of the banking system as a domestic agency 
perpetuates it. The narrow limits imposed by the Constitu- 
tion for national work no doubt drew to the slavery problem 
an increased attention. Congress had jurisdiction over the 
territories and over the District of Columbia, and the right to 
discuss the subject within conceded limits tempted to excur- 
sions into the fields of constitutional exclusion. 

The innovator who wishes his new measure to be adopted 
is still met on the threshold by the challenge of its constitu- 
tionality, a challenge which usually suffices to drive him back- 
ward. The youthful statesman, ambitious of a career of dis- 
tinction, will, if he enters our national Congress in times of 
peace, find his highest opportunity for usefulness in protecting 
the people from unnecessary taxation, and the national treas- 
ury from wasteful spoliation. Common sense and inflexible 
honesty are the qualities the nation needs most. If^he pre- 
fers his country's interest to his own, he will not regret that 
the nation has great need for solid, and little need for brilliant, 
qualities. Nay, he will find cause for congratulation in the 
fact that the early contentions are settled, and the government 
securely reposes upon its constitutional powers ; that it is not 
convulsed by spasms of threatened revolution, nor disturbed 
by apprehension of instability ; that it performs its functions 
without friction or tumult, without oppression or the tread of 
soldiery ; that its demands are few and just, and the welfare 
of its people the chief object of its care ; that all may rely 
upon its protection and confide in its justice. 

To aid in the administration of such a government may not 
present a field for ambitious enterprise or constructive energy. 



174 CONSTITUTIONAL HISTORY. 

The pursuits of private life may afford more opportunities for 
such qualities. But it is the plain duty of every citizen to do 
what he can to preserve the government and its administra- 
tion from decay and corruption, to correct the abuses which 
creep into official agencies, to counteract the selfish schemes 
of demagogues and thieves, however disguised under honest 
forms, and to insist that in politics and in government none 
but honest ends by honest means can command the support 
of honest men. 



LECTURE VIII. 

SLAVERY IN THE UNITED STATES. 

The institution of Slavery forms a curious and important 
chapter in our history. Four months before the Pilgrims 
landed at Plymouth, slaves had been landed in Virginia. A 
Dutch captain commanded the Mayflower. The Pilgrims 
engaged him to take them to the shores of Hudson's River. 
But the Dutch, fearing thus to lose that territory, bribed him 
to take them a safe distance to the northward. It was a 
Dutch captain, too, who first brought slaves to Virginia. 
Thus, the Dutch were the carriers of the institution, and of 
the race which subverted it. Slavery is among the oldest of 
human institutions. No record of human government so old 
but that slavery is yet older. The Christian religion, after 
centuries of struggle, becomes its final conqueror. The con- 
quest would not have been so long delayed but for the 
struggle between the followers of Christ and of Mahomet. 
The Christian religion teaches the equality of all. " God is 
no respecter of persons." " As ye would that men should 
do to you, do ye even also to them likewise." The Mahom- 
etan religion teaches that all true believers are equal in the 
eye of God and his Prophet ; that all others are infidels and 
enemies, fit for death or captivity. Hence to hold the Chris- 
tian in slavery was a pious duty. The Christian felt forced 
to retaliate, and when the follower of the Crescent became 
his captive, he also became his slave. He thus punished the 
enemy of the Cross and enjoyed the spoil of Christian con- 
quest. 

The Mahometan Moor of the western empire was not slow 
to suggest to his Christian conqueror that he would ransom 
himself from captivity by substituting the blackamoor, the 
pagan negro, in his stead. The Christian thought it better to 



176 CONSTITUTIONAL HISTORY. 

have a faithful slave than a treacherous one. Thus, the black- 
amoor became the coin in which the Mahometan Moor re- 
deemed himself from Christian captivity. And the negro, 
who knew naught of either faith, was sacrificed by the vota- 
ries of one to appease the greed and vengeance of the other. 

But Christian merchants soon found that they could cap- 
ture negroes as well as make exchanges for them. The igno- 
rance and helplessness of the negroes made them the spoil of 
mankind. If there had been no struggle between the Cross 
and the Crescent, it is possible there would have been no 
slaves in America. 

Be this as it may, the framers of the Constitution found 
the institution in existence, recognized by law, and tolerated, 
if not sanctioned, by the people of the several states. Its in- 
troduction was in violation of the English law ; not as it was 
then understood, but plainly so, as it was afterwards ascer- 
tained. In 1771, a slave named Somerset was taken by his 
master from Virginia to England. The slave refused to serve 
his master there. A writ of habeas corpus was issued by 
Chief Justice Mansfield, and the question whether Somerset 
was free or slave was brought before the full court. The court 
declared him free, and held that slavery was contrary to the 
laws of England, because positive law was necessary to estab- 
lish a condition of slavery, and England had made no such 
law. This decision inspired Cowper's lines : — 

" Slaves cannot breathe in England ; if their lungs 
Eeceive our air, that moment they are free : 
They touch our country and their shackles fall." 

By the common law, by the laws of England which the 
colonists inherited, by the limitations of their charters which 
forbade them to make any laws repugnant to the laws of Eng- 
land, the colonists neither had nor could rightfully make any 
laws sanctioning slavery. But before the force of the decision 
in the Somerset case could be fully perceived, or effect given 
to it, the colonies threw off their allegiance to England and 
became sovereign states. Sovereign states could legalize 
slavery. 

That positive law was necessary to authorize slavery was 
recognized by the clause in the fourth article of our Constitu- 



INTRODUCTION OF SLAVERY. 177 

tion, " No person held to service or labor in one state under 
the laws thereof" Slavery was first established in this country 
in opposition to any valid law ; certainly in opposition to that 
natural law which affirms the equality of right to personal lib- 
erty. The English, Dutch, and Spanish were slave-traders 
at the beginning of the seventeenth century. Africa was the 
breeding-ground of slaves : and the English, French, and Span- 
ish kings entered into treaties to assure to themselves the mo- 
nopoly of this traffic. In these treaties negroes were spoken 
of as measurable by weight ; thus, a ton of negroes, as we 
would say a ton of iron or coal. Spanish colonization pre- 
ceded the English upon this continent, and slavery was al- 
ready established in the Spanish settlements when the Eng- 
lish colonization began. It is said that slaves were first 
introduced into the English colonies from Barbadoes. In 
August, 1619, a Dutch man-of-war touched at a settlement in 
Virginia, and exchanged twenty slaves for provisions. With 
kings making treaties to further the slave-trade, with slaves 
in the neighboring Spanish provinces, and with the desire to 
obtain cheap labor, it probably did not occur to the colonists 
that it was a violation either of law or of morals to purchase 
these savage heathen, and compel them to submit to the dom- 
ination of Christian masters. The Levitical law declared: 
" Both thy bondmen and thy bondmaids, which thou shalt 
have, shall be of the heathen that are round about you ; of 
them shall ye buy bondmen and bondmaids." The further 
introduction of slaves seemed to follow as the result of lawful 
trade. Thus, slavery was at first permitted, probably, by the 
indifference of feeble communities, afterwards tolerated by 
custom, and finally sanctioned by colonial law. In our treaty 
with Great Britain by which our independence was acknowl- 
edged, the phrase occurs, " negroes, or other property." 

We should be unjust if we judged the conduct of the early 
colonists by the moral standards of the nineteenth century. 
The slave, as he was brought here from his native land, seemed 
to present small claims to be considered as the equal in right 
of the white man. He had the form of a man, but not his in- 
telligence. He was obedient and docile, and was supposed to 
rest under the curse denounced against Canaan : " A servant 
12 



178 CONSTITUTIONAL HISTORY. 

of servants shall he be unto his brethren." His contact with 
civilization disclosed his latent intelligence, and his emotional 
nature readily yielded to the teachings and influence of the 
Christian religion. When the slave professed Christianity, 
the argument which condemned the heathen to bondage was 
gone ; and when the white man became the parent of the 
Christian mulatto, the argument lost half its support. But 
selfishness obviated the legal, if not the moral difficulty, by 
procuring the enactment of laws that once a slave always 
a slave, and that the condition of the negro child, whether 
free or slave, should follow that of its mother, and not, as 
with the white child at the common law, the condition of its 
father. Thus the succeeding generations of colonists were 
constrained to tolerate an institution which developed injus- 
tice and cruelty, not foreseen by their ancestors. Their mo- 
rality took its tone from the conditions they inherited. What- 
ever may be the ideal standard of morals, the practical one 
must be largely formed by the conditions of its time and 
place. The nineteenth century closes with a different stand- 
ard from the one with which it opened. The century began 
with slavery in nineteen English colonies, in those of France, 
Holland, Denmark, and Sweden, and in the Spanish and Por- 
tuguese colonies of South America. It will end with slavery 
abolished in most of them, if not in all. Brazil was the last 
American nation to abolish slavery. This was done in 1888. 
There is probably now more slavery in Africa than upon all 
the other continents. The colony of Rhode Island prohibited 
slavery as early as 1652, but the prohibition was long practi- 
cally disregarded. The Quakers in Pennsylvania protested 
against it in 1688. The Swedes at first prohibited it in Dela- 
ware, but the Dutch admitted it. The Duke of York's char- 
ter for New York, in 1665, prohibited the slavery of Chris- 
tians, and thus by implication favored that of heathens. 

Long before the Declaration of Independence, many la- 
mented the existence of slavery as both a wrong and a disas- 
ter. Montesquieu, in the early part of the eighteenth century, 
eloquently attacked the institution. I have already remarked 
the high estimation in which his precepts of political science 
were held by our statesmen. Jefferson was his pupil, but he 



CONSTITUTIONALITY OF SLAVERY. 179 

was also convinced by Lis own observation that slavery ought 
to be abolished, and he made no concealment of his convic- 
tions. In the original draft of the Declaration of Indepen- 
dence, Jefferson wrote the following charge against George 
the Third and against slavery : — 

" He has waged cruel war against human nature itself, violating 
its most sacred rights of life and liberty in the persons of a distant 
people who never offended him, capturing and carrying them into 
slavery in another hemisphere, or to incur a miserable death in their 
transportation thither. This piratical warfare, the opprobrium of 
infidel powers, is the warfare of the Christian king of Great Britain. 
Determined to keep open a market where men should be bought and 
sold, he has prostituted his negative for suppressing every legislative 
attempt to prohibit or restrain this execrable commerce." 

This paragraph was stricken out by the committee before 
the document was submitted to Congress. It would have 
been impolitic for the convention which framed the Constitu- 
tion to attempt to transfer from the states to the United 
States the control of the institution of slavery. It was re- 
garded as a domestic institution, to be regulated or prohibited 
by every state in the exercise of its own reserved sovereignty. 
Its regulation or control was not one of the objects for which 
the Constitutional Convention was thought to be necessary. 
Enough, however, was said in the convention by many north- 
ern delegates to show that they strongly condemned the in- 
stitution. They were successful in keeping the word " slave " 
out of the instrument, but the practical effect of what was 
put in it was to strengthen the institution. Mr. Chief Justice 
Taney, speaking for the majority of the United States Su- 
preme Court, in 1856, in his opinion in the celebrated Dred 
Scott case, 1 said : — 

" The right of property in a slave is distinctly and expressly 
affirmed in the Constitution. The right to traffic in it like an ordi- 
nary article of merchandise and property was guaranteed to the citi- 
zens of the United States, in every state that might desire it, for 
twenty years. And the government, in express terms, is pledged to 
protect it in all future time if the slave escapes from the master. 
And no word can be found in the Constitution which gives Congress 

1 19 How. 393. 



180 CONSTITUTIONAL HISTORY. 

a greater power over slave property, or which entitles property of 
that kind to less protection than property of any other description. 
The only power conferred is the power coupled with the duty of 
guarding and protecting the owner in his rights." 

These assertions of the Chief Justice were based upon the 
provisions of the Constitution which forbade Congress to pro- 
hibit, prior to 1808, the importation of slaves, and which pro- 
vided that " no person held to service or labor in one state, 
under the laws thereof, escaping into another, shall, in conse- 
quence of any law or regulation therein, be discharged from 
such service or labor, but shall be delivered up on claim 
of the party to whom such service or labor may be due." 
As "by the laws thereof" slavery might exist in any state, 
and as there was reserved to the states, or to the people, the 
powers not delegated by the Constitution to the United 
States, and as no power was delegated to the United States 
to interfere with the state laws favoring slavery, it followed 
that the United States could do nothing to prohibit slavery 
in any state. And it followed that, as by the Constitution 
the fugitive slave must be delivered up, Congress, which had 
power " to make all laws necessary and proper for carrying 
into execution all powers vested by the Constitution in the 
government of the United States," had power to make the 
Fugitive Slave Law. It also followed that the general gov- 
ernment under the Constitution had no power to mitigate the 
institution of slavery in the states, since no such powers were 
delegated to it, but did have power to make the condition of 
the slave more onerous and hopeless, since the power to pass 
laws to cause him to be delivered up was delegated to it. 
Because it was so, the Abolitionists were sometimes moved to 
say that the Constitution was a " covenant with Death and 
an agreement with Hell." 

Indeed, the provision in the Constitution for the delivering 
up of fugitive slaves escaping from one state into another, — 
from a state where, by the laws thereof, he was lawfully a 
slave to a state where, by the laws thereof, he was lawfully 
free, — was one of the strongest commendations of the instru- 
ment to the slave -owners. It gave additional security and 
protection to their property in slaves. It was a guarantee of 



DENIAL OF RIGHTS TO THE NEGRO. 181 

a right of property in fugitive slaves wherever they might be 
found in the Union. 

Charles C. Pinckney said, in the convention of South Caro- 
lina, in advocating the ratification of the Constitution, " We 
have obtained the right to recover our slaves in whatever 
part of America they may take refuge ; which is a right we 
had not before." It is significant that the Articles of Con- 
federation said nothing upon the subject. 

I venture to quote still further from the same opinion of 
Chief Justice Taney. He was contending for the proposition 
that the negro could not be a citizen of the United States, 
and that he was not within the meaning or intent of any of 
the provisions of the Declaration of Independence, the Arti- 
cles of Confederation, or of the Constitution, respecting citi- 
zenship or liberty. Had he confined his remarks to the slave 
instead of extending them to all persons of African descent, 
the denunciation of which he was the object, from 1857 down 
to our own times, would probably have been less violent. 

" It is difficult," he said, " at this day to realize the state of public 
opinion in relation to that unfortunate race, which prevailed in the 
civilized and enlightened portions of the world at the time of the 
Declaration of Independence, and when the Constitution of the 
United States was framed and adopted. They had more than a 
century before been regarded as beings of an inferior order, and alto- 
gether unfit to associate with the white race, either in social or polit- 
ical relations ; and so far inferior that they had no rights which the 
white man was bound to respect, and that the negro might justly and 
lawfully be reduced to slavery for his benefit. He was bought and 
sold, and treated as an ordinary article of merchandise and traffic, 
whenever a profit could be made by it. This opinion was at that 
time fixed and universal in the civilized portion of the white race. 
It was regarded as an axiom in morals as well as in politics, which 
no one thought of disputing, or supposed to be open to dispute ; and 
men in every grade and position in society daily and habitually acted 
upon it in their private pursuits, as well as in matters of public con- 
cern, without doubting for a moment the correctness of this opinion." 

Hear Mr. Madison, in the forty-third number of " The Fed- 
eralist." He is speaking of possible domestic violence, and 
referring to that provision of the Constitution which requires 



182 CONSTITUTIONAL HISTORY. 

the United States to guarantee to every state in the Union a 
republican form of government, and to protect it from inva- 
sion and domestic violence. He says a minority of citizens 
may become a majority of persons by accessions from aliens 
and others not admitted to suffrage, and adds : — 

" I take no notice of an unhappy species of population (meaniDg 
slaves) abounding in some of the states, who, during the calm of reg- 
ular government, are sunk below the level of men ; but who, in the 
tempestuous scenes of civil violence, may emerge into the human 
character, and give a superiority of strength to any party with which 
they may associate themselves." 

This is a remarkable paragraph, at once a description of the 
slave as he was, and a prophecy of what he was to become. 

We may at least believe that at the time of the adoption of 
the Constitution, the idea had not entered the minds of the 
people that the new government would have anything to do 
with slavery, except to suppress the slave-trade after 1808, 
and to compel the return of fugitive slaves. 1 

At the first Congress the Pennsylvania Society for promot- 
ing the Abolition of Slavery presented a petition asking that 
slavery be abolished. This petition was signed by Benjamin 
Franklin as president of the society. 

Congress replied as follows : " That the Congress have no 
authority to interfere in the emancipation of slaves, or in the 
treatment of them in any of the states ; it remaining with 
the several states alone to provide any regulations therein 
which humanity and true policy may require." The same 
page of Benton's " Abridgment of the Debates of Congress " 
which records this reply of Congress, also records the death 
of Benjamin Franklin. Consistent to the end, this steadfast 
friend of humanity pauses before the open portals of death to 
knock in behalf of the slave on the portals of freedom. The 
Quakers, and others, presented similar petitions to this and 
subsequent sessions of Congress, but it never receded from 
its first reply. 

1 A Boston newspaper, a few days after Washington's first inauguration, re- 
minded the Anti-Federalists that, under the new Constitution, two runaway 
negro boys had been apprehended in that city and returned to their masters. 



FIRST FUGITIVE SLAVE LAW. 183 

In 1793, the first Fugitive Slave Law was passed. About 
the time of the adoption of the Constitution a colored man 
was seized by several persons in Pennsylvania, and forcibly 
carried into Virginia with intent to enslave him. The laws 
of Pennsylvania made this act a crime, and the kidnappers 
were indicted. But they fled to Virginia and the governor 
of the latter state refused to surrender them. The corre- 
spondence between the governors, and the papers relating to 
the case, were transmitted to President Washington by the 
governor of Pennsylvania with the inquiry how the consti- 
tutional provision respecting fugitives from justice could be 
made effective. The President laid the matter before Con- 
gress. The result was that bills with respect to fugitives 
from justice and fugitives from slavery were passed. No 
debate occurred in the House. The Senate at that time sat 
with closed doors, and whether any debate occurred there is 
not known. Probably there was none, as the propriety of 
giving effect to the constitutional provision could not well be 
contested. The Fugitive Slave Bill did not attract public at- 
tention till long afterwards. It provided that the owner of 
the fugitive might seize him and take him before any federal 
judge, or before any local magistrate of the state, and the 
magistrate should order that he be delivered up to his master, 
if satisfied that the master's claim was valid. Afterwards, 
when public sentiment became aroused, it was objected that 
the state officer was enjoined by the United States to perform 
certain duties, and finally, in 1842, the Supreme Court of the 
United States substantially held that Congress had no power 
to impose or require any official service of a state officer. 1 
Several states thereupon passed acts, forbidding, under severe 
penalties, the rendition by their officers of the services required 
by this act, and providing that the fugitive slave should have 
the privilege of the writ of habeas corpus and of trial by jury. 

It was the hope of benevolent men in the earlier years 
of the government that the states would ultimately abolish 
slavery of their own accord. The Northern States did this : 
Vermont by her first Constitution in 1777, Massachusetts in 
1780, and New Hampshire in 1783. Gradual abolition was 
1 Prigg v. Pennsylvania, 16 Peters, 539. 



184 CONSTITUTIONAL HISTORY. 

ordained by Pennsylvania in 1780, by Connecticut and Rhode 
Island in 1784, by New York in 1799, and New Jersey in 
1804. Slavery wholly ended in New York July 4, 1827. 

Societies to promote gradual abolition were formed in sev- 
eral of these states near the close of the last century. It was 
hoped that the same influences would prevail in the Southern 
States. But the sudden and enormous development of the 
production of cotton made slave labor so profitable that self- 
ishness prevailed over humanity. 

In 1816 the American Colonization Society was formed. 
Its object was to promote emancipation by colonizing the free 
blacks in some distant colony, and to remove the free blacks 
from the slave states. The Virginia Legislature in 1816 com- 
mended the movement to the favor of the general government. 
It was warmly supported by Jefferson, Madison, Monroe, 
Clay, and other eminent men at the South, and had branches 
in every northern state. Under its patronage was formed 
the colony, now the Republic of Liberia, on the western coast 
of Africa. The society still exists, its present purpose being 
to help sustain the feeble but interesting Liberian Republic. 
Its influence in abolishing slavery was the indirect one of 
leading many of its members through the gate of colonization 
into the fold of the abolition party. 

Of the thirteen original states of the Union seven became 
free and six slave states. Care seems to have been taken to 
admit new states in pairs, one free and one slave. Thus, Ken- 
tucky and Vermont, Tennessee and Ohio, came in nearly to- 
gether. Louisiana, carved from the French purchase, restored 
equality. Then Mississippi and Indiana, Alabama and Illi- 
nois, still maintained the equilibrium. Not till Missouri in 
1818 applied to be admitted as a slave state was the subject 
of slavery much discussed, and then finally Maine was admit- 
ted as the companion state. Afterwards Arkansas and Mich- 
igan, Florida and Iowa, were received in pairs, one slave and 
the other free. 

Before the Constitution was adopted, New York, Massachu- 
setts, Connecticut, Virginia, and South Carolina ceded to the 
United States the large tracts of western lands to which they 
respectively made claim. These cessions were made, both to 



ORDINANCE OF 1787. 185 

conciliate the other states, and to place the proceeds of their 
sales at the disposal of the United States in payment of the 
debts incurred by the war. 

Virginia surrendered to the confederacy all her claims to 
the territory lying northwest of the Ohio River. On the 
13th of July, 1787, while the Constitutional Convention was 
in session, the confederate Congress adopted an ordinance for 
the regulation and government of this territory. This ordi- 
nance provided that when the population would justify it, the 
territory should be formed into states, not less than three nor 
more than five, and that each state should be admitted into 
the Union upon the same footing as the original states. It 
provided that there should be neither slavery nor involuntary 
servitude in the territory otherwise than as punishment of 
crimes. This ordinance was regarded as a compact between 
Congress and the State of Virginia, and also between Con- 
gress and the people who should thereafter settle in the ter- 
ritory. It was regarded as binding upon the United States, 
which succeeded to the obligation of the confederacy, and 
was reenacted by the first Congress under the Constitution. 
It was believed to be inviolable. 

Practically this ordinance had the force of a constitutional 
enactment. It certainly excluded slavery from the states 
northwest of the Ohio, and its moral effect was constant and 
wide-reaching. It signified to the minds of many that, in the 
early judgment of the states, South as well as North, slavery 
was wrong in itself ; that however much circumstances might 
excuse it where it was inherited, the area of its existence ought 
not to be extended. But in fact the legal effect of the ordi- 
nance was feeble. When North Carolina came into the Union 
in 1790, she ceded to the United States the territory after- 
wards forming the State of Tennessee, but with the proviso, 
which Congress accepted, " that no regulations made or to be 
made by Congress shall tend to emancipate slaves." The first 
Congress soon after provided for the government of the terri- 
tory south of the Ohio, and adopted the North Carolina proviso. 

The Supreme Court in the Dred Scott case declared that 
the Ordinance of 1787 was in excess of the powers of the con- 
federacy, and ceased to be of binding force upon the ratifica- 



186 CONSTITUTIONAL HISTORY. 

tion of the Constitution. This declaration of the court was 
popularly regarded at the North as one of the great heresies of 
that famous decision. It has, however, been repeatedly held 
by the court, and as recently as 1886, 1 that upon the admis- 
sion of any part of the territory as a state the restraints of 
the ordinance ceased in the state. 

The five states which were formed out of the Northwest 
Territory came into the Union as free states ; but the territory 
south of the Ohio made only four, namely Kentucky, Tennes- 
see, Alabama, and Mississippi. Thus the Ohio River to its 
junction with the Mississippi was the dividing line between 
slave and free territory. West of the Mississippi River, at 
the time of the adoption of the Constitution, the territory be- 
longed to Spain. It extended to the main range of the Rocky 
Mountains, and possibly further, since the country was not 
then sufficiently known to give it a precise boundary, except 
by adopting a degree of longitude. South of the thirty-first 
parallel of latitude, the territory from the Atlantic to the Mis- 
sissippi then also belonged to Spain. I have already detailed 
the methods by which we acquired these territories, including 
Texas, New Mexico, and California. 

The Oregon country we acquired partly by discovery, 
partly by occupation, and finally by treaty. In the same year 
in which the Constitutional Convention sat in Philadelphia, 
two vessels, the Columbia and Washington, were sent from the 
port of Boston by a company of adventurers, to circumnavi- 
gate the globe, explore the eastern coast of the Pacific, trade 
with the savages of the Sandwich Islands, and with the mer- 
chants of the Celestial Empire. In the course of their ex- 
ploration upon the Pacific coast, they entered the mouth of a 
great river, which we now know has its head-waters on the 
western slopes of the Rocky Mountains. The captain named 
it Columbia, after one of his vessels. This is the foundation 
of our claim to our possessions upon the Pacific coast. Lewis 
and Clarke, in 1803, under the patronage of President Jeffer- 
son, explored the Columbia River from its sources in the moun- 
tains to its mouth upon the ocean. In the Florida treaty of 
1819, Spain transferred to us whatever claim she had to the 

i 116 U. S. 546. 



STATES FROM ACQUIRED TERRITORY. 187 

northwest coast. If France ever had any claim she sold it 
to us in our Louisiana purchase. 

John Jacob Astor established a fur-trading post there in 
1811. England, however, contested our title. She claimed 
priority of discovery of the country tributary to the Columbia 
River on its northerly side, but the fact was, her discoveries 
were five hundred miles north of that river. Mr. Astor was 
driven out in the War of 1812, and the Hudson's Bay Com- 
pany took possession. A treaty with England in 1818 allowed 
England and the United States joint occupation, and postponed 
the boundary question. But in 1846 our title was recognized 
and the boundary defined, not so far to the north as we had 
claimed, but upon the forty-ninth parallel. This parallel was 
adopted because in the treaty of Utrecht, made between 
France and England in 1713, it was constituted the boundary 
between the English and the French possessions west of the 
Lake of the Woods, then the westernmost locality known east 
of the Pacific. The territory of Florida and that vast region 
extending from the Mississippi River to the Pacific Ocean be- 
came part of the United States. 

In 1812, the State of Louisiana was admitted into the 
Union. This was the first state that came in from the ac- 
quired territory. That an additional slave state was proposed 
to be added did not much engage public attention. The 
Federalists in Congress opposed its admission upon the grounds 
that the Constitution was framed and the Union organized 
for the benefit of the original thirteen states and of the states 
that might be formed out of the territory then possessed by 
the United States ; not including any that might thereafter 
be acquired. They contended that the framers of the Consti- 
tution did not intend that the original states, and those to be 
formed within their territory as then possessed, should enter 
into any partnership with new states to be formed out of con- 
quered or purchased territory ; the Constitution was for the 
benefit of the people of the United States, not of Louisiana ; 
the introduction of new states from this immense western 
territory would result in overwhelming the original states by 
their numbers, power, and influence, and would subject the 
rights and liberties of the old to the power and consideration 



188 CONSTITUTIONAL HISTORY. 

of the new ; the old never contemplated such a union ; they 
never agreed to it ; they would not submit to it. Mr. Quincy 
of Massachusetts said in Congress : " It is my deliberate 
opinion that if this bill passes, the bonds of this Union are 
virtually dissolved ; the states which compose it are free from 
their moral obligations; and that, as it will be the right of all, 
so it will be the duty of some, to prepare definitely for a sepa- 
ration, amicably if they can, violently if they must." The 
bill passed. A territorial government was also framed for the 
country lying north and west of Louisiana. 

In 1818 the people of this territory, lying north of 36° 30', 
applied for admission as a state. Slaves already existed there. 
Its eastern boundary extended northward along the Missis- 
sippi, far above its junction with the Ohio. Thus, if slavery 
should be established in the new state, it would go northward 
upon the territory acquired from France, far above the line 
which marked its northern limit in the northwest territory, 
east of the Mississippi. 

It was moved that the admission of Missouri be made de- 
pendent upon the conditions that the further introduction of 
slaves be prohibited, and that all slave children born after the 
admission should become free at the age of twenty-five. The 
discussion over the admission was prolonged for more than a 
year. It was contended on the part of the prohibitionists, 
that, under the provision of the Constitution, " new states 
may be admitted by Congress into this Union ; " that the 
power to admit implied the power to impose the conditions of 
admission. On the other hand it was contended that upon 
the admission of a state it became the equal in right of every 
other state, and therefore the proposition to admit a state was 
necessarily a proposition to admit without any restriction 
whatever. This position was fortified by a provision of the 
treaty by which the territory of Louisiana was acquired by 
the United States. This declared that " the inhabitants of 
the ceded territory shall be incorporated in the Union of the 
United States, and admitted as soon as possible, according to 
the principles of the federal Constitution, to the enjoyment of 
the rights of citizens of the United States." Any restriction 
upon their right to hold slaves, it was argued, would therefore 



WILLIAM LLOYD GARRISON. 189 

be an infringement of their rights under this treaty. To 
which the reply was, that the right to hold slaves was not a 
right of a citizen of the United States, but only the right of 
the citizen of such states as " by the laws thereof " allowed 
slavery. Pending the discussion Maine applied for admission, 
and the South determined to keep Maine out unless Missouri 
should be admitted without restriction. It was finally pro- 
vided as a compromise of the difficulty that slavery should be 
prohibited forever north of 36° 30' in the territory outside of 
Missouri, and that the state be admitted without restriction. 
This compromise prevailed, and many supposed that the 
slavery question was settled forever. 

President Monroe, however, hesitated for a time to sign 
the bill. He asked his cabinet two questions : First, Has 
Congress power to prohibit slavery in a territory ? Second, 
Does the term " forever " extend beyond the territorial condi- 
tion and apply to the subsequent state? The cabinet an- 
swered Yes to the first question, and divided upon the second. 
The question was then changed to the inquiry, Is the bill 
constitutional ? which all answered Yes, and thus postponed 
the disputed question to the next generation. 

The fact was that the discussion of the Missouri question, 
and the manner in which it was disposed of, led a few men to 
think deeply upon the subject, and prepared others to unite 
with the abolition societies which were subsequently formed. 
The pioneer Abolitionist was one Benjamin Lundy. The 
Missouri question stirred him profoundly. In 1821 he com- 
menced the publication of an abolition paper styled the 
" Genius of Universal Emancipation." He was moderate in 
his methods, and sought by moral forces to achieve the free- 
dom of the slaves. He conceived the idea of finding a refuge 
for them in Texas or Mexico, and colonizing them there. In 
1829 William Lloyd Garrison became associated with him as 
publisher of this paper. Garrison, however, soon wearied of 
the moderate methods of Lundy, and he left him and estab- 
lished " The Liberator." The tone of this paper was ex- 
tremely radical. It took the position that slavery was a 
crime ; and because a crime, no toleration should be accorded 
it, and no compromise made with the slave-holders, whom it 



190 CONSTITUTIONAL HISTORY. 

denounced as criminals. Garrison had the qualities of which 
martyrs are made. In season and out of season, in spite of 
mobs who threatened his life and destroyed his property, he 
prosecuted his work ; seeking personal safety by disguise, by 
concealment, by voluntary imprisonment in jail, and often by 
flight, he cried aloud and spared not, from about 1836 to the 
outbreak of the civil war. Here and there friends began to 
gather around him. Some were convinced by his arguments, 
others yielded to his exhortations ; some were gained by his 
lofty spirit, which defied danger and persecution, others by 
the intolerance which denied him freedom of speech. Many 
sympathized with him in secret, and wished his cause the 
success they had not the courage to avow. A few northern 
pulpits ventured to pray that the slave might become free. 
The sinfulness of slavery began to take hold of men's con- 
sciences. In January, 1832, the New England Anti-Slavery 
Society was formed ; its avowed purpose was immediate aboli- 
tion. In December, 1833, the " American Abolition Society " 
was formed. Other abolition societies followed. The term 
"abolitionist" was used by their enemies as a word of re- 
proach. These societies met with the condemnation of most 
of the churches, of the magistrates, the legislators, the polit- 
ical parties, and of the mob. Their meetings were often dis- 
persed by violence. Some of the societies were as radical as 
Garrison himself, and demanded immediate abolition ; others 
employed more moderate methods and hoped that moral and 
religious influences would accomplish the result. They were 
often reproached because of their omission to recommend 
compensation to the owner of the slave for his loss of prop- 
erty. "Why not be virtuous at your own expense?" was 
often sneeringly asked. Such a question had no weight with 
those wlio denounced slavery as a crime. To the objection 
that the Constitution sanctioned slavery in every state whose 
laws admitted it, the answer finally was made, and met with 
wide acceptance, " There is a Law higher than the Constitu- 
tion." By some this was understood as referring to the bind- 
ing force of the Christian religion, which taught the common 
brotherhood and equality of man. With others the argument 
was that the Constitution was based upon the Declaration 



DENIAL OF THE RIGHT OF PETITION. 191 

of Independence, " that all men are created equal and en- 
dowed by their Creator with certain inalienable rights; that 
among these are life, liberty, and the pursuit of happiness ; 
that to secure these rights governments are instituted among 
men." The Constitution instituted a government to secure 
these rights. If it failed to express this security, the Decla- 
ration of Independence, the higher law, supplied it. 

The South took alarm. The immediate result was to make 
the condition of the slave more deplorable. The South began 
to fear, or affected to fear, that one of the purposes of the 
Abolitionists was to provoke an insurrection of the slaves, and 
to lead them to seek their liberty by a massacre of their 
white masters. Laws were passed making it a crime to teach 
the slave to read, forbidding any religious meetings among 
them except in the presence of slave-holders, and prohibiting 
the circulation of any anti-slavery papers through the mails. 
A northern man known to be opposed to slavery found it 
unsafe to appear in a southern state. Petitions were con- 
stantly presented to Congress in behalf of the slave. The 
right of petition is recognized by the first amendment to the 
Constitution: it is not conferred by it, but Congress is 
thereby prohibited from abridging the existing right. 1 The 
right to present a petition to the government implies the 
duty on the part of the government to receive it. This duty 
Congress recognized until 1836. In that year the petitions 
respecting slavery, and especially its abolition in the District 
of Columbia, over which Congress, by the Constitution, had 
exclusive jurisdiction, became very numerous, and were so 
offensive to the southern representatives that the House was 
induced to pass a resolution that all such petitions should be 
referred to a select committee, with instructions to report that 
Congress could not interfere with slavery in the states, and 
ought not to do so in the District of Columbia. This was 
a practical refusal to consider the petitions. John Quincy 
Adams was a member of the House, and he opposed the 
"gag," as it was called, with all his force. 

The effect of the gag was to multiply the petitions. But 
the House adhered to its resolution ; making it stronger in 

1 See, however, Cruikshank's case, 92 U. S. 542. 



192 CONSTITUTIONAL HISTORY. 

succeeding Congresses. In 1840 it adopted a rule, famous as 
the " twenty-first rule," by which it declared that no petition, 
memorial, resolution, or other paper, praying the abolition of 
slavery in the District of Columbia or in the territories, or of 
the interstate slave-trade, should in the future be received by 
the House, or entertained in any manner whatever. The 
petitions which flowed into Congress, and which Mr. Adams 
usually presented, for the repeal of this rule, were vast in the 
number of signatures. For nearly ten years Mr. Adams, 
with the ever increasing support of the people, struggled for 
its repeal. He was a foe whom few wished to encounter in 
debate, and he worthily bore the distinction of the " old man 
eloquent." In 1844 the twenty-first rule was repealed. The 
excitement which this needless violation of the Constitution 
had created brought great strength to the abolition move- 
ment. Agitation was its life and support. In 1840 the 
anti-slavery party cast only 6,745 votes for its presidential 
candidate. In 1844 the same party cast 58,879, enough to 
secure the defeat of Mr. Clay, and the election of Mr. Polk. 
The agitation over the denial of the right of petition was one 
cause of the increased vote ; the proposal to annex Texas and 
thus extend the area of slavery was another. 

Both parties, the whig and democratic, supported slavery. 
The northern members defended the institution upon consti- 
tutional grounds ; the southern added moral and scriptural 
grounds. The South was in earnest in defence of its prop- 
erty and institutions ; the North was complaisant and calculat- 
ing, regardful of political expediency and success. The ac- 
quisition of Texas, and of the territory gained through the 
Mexican War, was promoted by the South and by southern 
sympathizers in order to give to slavery territory enough to 
enable it to bring into the Union one slave state south of 
36° 30' as often as a free state came in from territory north 
of that line. 

This concession of new territory to slave extension met 
with a determined resistance. While the Mexican War was 
in progress, President Polk asked Congress to place $2,000,- 
000 at his disposal, to be used in negotiating peace. A bill 
to that effect was introduced in Congress. Mr. Wilmot 




ADMISSION OF CALIFORNIA. 193 

moved a proviso, " That it be an express and fundamental 
condition to the acquisition of any territory from Mexico that 
neither slavery nor involuntary servitude shall ever exist 
therein." This motion convulsed the country, but was ulti- 
mately lost. This was the famous " Wilmot Proviso." The 
pro-slavery leaders asserted their willingness to extend the 
Missouri Compromise line of 36° 30' to the Pacific Ocean. It 
seemed at the close of the Mexican War that slavery had 
gained that area for its extension which would suffice to 
secure to it full political dominion over the nation. But with 
Texas it gained its last state. It finally lost all because it 
asked too much. 

In 1848 gold was discovered in California. The tide of 
adventurers poured in. They had no slaves to take with 
them and no desire to acquire any. In less than a year the 
newly gathered people outnumbered the population of some 
of the smaller states. They organized a state government 
with an anti-slavery constitution, and demanded admission 
into the Union. True, the greater part of the proposed state 
lies north of 36° 30', but its climate, tempered by the Pacific 
Ocean, is of rare mildness. If any part of the newly ac- 
quired territory should be opened to slavery, it seemed that 
California was the part best suited for it. If California re- 
pelled slavery, there was small hope that the remainder of 
the new territory would embrace it. Congress debated for 
ten months over the admission of California. The threat- 
ened inequality in numbers of the free and slave states was 
the central subject of contention, and the Union seemed 
again in danger of disruption. A compromise, as it was 
called, was again effected. California came in without slavery 
on the one hand, and a new Fugitive Slave Law was passed 
on the other. The slave-trade was abolished in the District 
of Columbia ; but governments were provided for Utah and 
New Mexico without expressing any privilege or restriction 
respecting slavery. On the one hand it was urged that the 
laws of nature would be effective to exclude slavery ; on the 
other it was claimed that the Constitution by its own vigor 
permitted its extension there, and would protect it when es- 
tablished. Texas was shorn of her territory north of 36° 

13 



194 CONSTITUTIONAL HISTORY. 

30', and was paid $10,000,000 for it. Texas wanted money 
to pay her debts, and the North was expected to consent to 
the payment, if it obtained more free territory in exchange. 
About this time our Oregon boundary was settled with Eng- 
land. We had been strenuous in our demand that 54° 40' 
was the true line, but the forty-ninth parallel was accepted ; 
the more readily by the administration, it was said, lest an- 
other free state should be carved out of the territory. The 
South conceived that it lost more than it gained by the com- 
promise. Iowa was admitted in 1846, and Wisconsin in 
1848. By the admission of California the plan for restoring 
the equality between free and slave states was destroyed. 
But the nation and all the states were made protectors of 
slavery. The North was especially dissatisfied with the new 
Fugitive Slave Law. 

That a fugitive slave law was within the constitutional 
competency of Congress seems to be clear from the provision 
of the Constitution that the fugitive " shall be delivered up 
on the claim of the person to whom such service or labor may 
be due." The general rule is that it is competent for Con- 
gress to give effect by law to every constitutional provision 
which is not self-executing, and requires affirmative action. 
Nevertheless, respectable jurists contended that this partic- 
ular provision enjoined action upon the several states, and 
not upon Congress. The North exclaimed with anger and 
indignation against the harsh and unusual provisions of this 
particular law. It provided that the question whether the 
fugitive negro was a slave should be tried by a commissioner 
and not by a jury ; that the commissioner might receive affi- 
davits in evidence, but could not receive the testimony of the 
fugitive ; the privilege of the writ of habeas corpus was de- 
nied. Any citizen might be compelled to assist in the capture 
and return of the fugitive. The commissioner was allowed a 
fee of ten dollars if he found the fugitive to be a slave, and 
only five dollars if he declared him a freeman. Wherever 
the execution of this law was attempted at the North, great 
excitement prevailed ; sometimes violence protected the fugi- 
tive from a return to slavery, and sometimes armed force 
compelled his return. 



THE NEBRASKA BILL. 195 

The so-called compromise measures were proclaimed by 
both the whig and democratic parties as a " finality," and 
they greatly applauded them as laying forever at rest the dis- 
turbing question of slavery. In the presidential election of 
1852, the two parties vied with each other in congratulating 
the country, meaning the voters, that peace had come by the 
wise concession of all sections. They concurred in predicting 
or threatening that any attempt to reopen the questions set- 
tled by the compromise would meet with the severest polit- 
ical reprobation. The anti-slavery vote was much reduced. 
The South, believed that the democratic party made these 
professions with more sincerity than the Whigs, and in this 
the South discerned correctly. The result was, the demo- 
cratic party triumphed in the election of President Pierce, 
and the whig party ceased to exist. 

This party came into existence to oppose Andrew Jack- 
son, and to promote the prevalent economic views respecting 
the national bank, protective tariff, and internal improve- 
ments. It was a property party, useful in times when indus- 
trial and moneyed interests were paramount, but insignifi- 
cant in the presence of a great moral agitation. 

It is not improbable that the final solution of the slavery 
question would have been long postponed, despite the grow- 
ing strength of the anti-slavery party, had not the South 
conceived the expedient of abolishing the Missouri Compro- 
mise restriction, and thus of gaining from northern territory 
the equivalent for the lost state of California. In 1854, a 
bill to provide for the territorial government of Nebraska was 
pending. Nebraska was imperial in the extent of her do- 
main. The word Nebraska signifies the country of broad 
rivers. The sources of the Missouri were along her western 
and northern limits, and that great river flowed within her 
territory for more than two thousand miles before it reached 
her eastern boundary, and then for five hundred miles further 
it formed a part of that boundary. The Missouri, the Platte, 
the Yellowstone, and the Arkansas, with their numerous 
tributaries, seemed to justify her Indian name. The terri- 
tory was greater in extent than that of all the free states 
east of the Mississippi. Aside from its hunting posts, it was 



196 CONSTITUTIONAL HISTORY. 

uninhabited by white men. There was no special urgency 
for a territorial organization, and previous bills for the like 
purpose had failed to become laws. These bills had been in 
the form usual in such cases, and had expressly recognized 
the Missouri Compromise restriction with regard to slavery. 
All of this territory lay north of 36° 30', and slavery was 
therefore excluded from it. Mr. Douglas, a senator from 
Illinois, and chairman of the committee upon territories, in 
1854 reported a bill for its government. This bill declared 
that when the territory came to be admitted as a state, such 
admission should be had regardless of the question whether 
its constitution permitted or prohibited slavery. Great ex- 
citement followed the report of the bill. That its object was 
to permit the introduction of slavery, notwithstanding the 
Missouri restriction, was obvious. It was probable that if it 
should pass, the free population of the North would flow into 
the northerly portion, and would outnumber the people who 
would be attracted from the South to the more southerly 
portion. Mr. Douglas by an amended bill therefore divided 
the territory into two portions, and gave the name of Kan- 
sas to the more southerly. The whole of the eastern boun- 
dary of Kansas adjoined the western boundary of Missouri. 
It was said that there was not a white man living in Kansas 
at that time. The amended bill was ultimately so framed as 
to repeal the Missouri Compromise restriction, and to declare 
its meaning to be " not to legislate slavery into any territory 
or state, nor to exclude it therefrom ; but to leave the people 
thereof perfectly free to form and regulate their domestic in- 
stitutions in their own way, subject only to the Constitution 
of the United States." 

It was thought that, under this bill, while the territorial 
condition existed, slavery could not be excluded, for the rea- 
son that the congressional restriction was withdrawn, and 
that the power given to the people to form and regulate their 
domestic institutions would be regarded as referring to their 
action when they came to form the state constitution ; and 
the implication was strong that " subject only to the Consti- 
tution of the United States " was inserted in expectation that 
the Supreme Court would decide, if the proper case should be 



THE REPUBLICAN PARTY. 197 

brought before it, that neither Congress nor the territorial 
legislature had the constitutional power to exclude slavery. 
In the North this bill created intense excitement. Neverthe- 
less, it became a law. All other political questions became 
secondary to the absorbing slavery question. Mr. Seward de- 
clared that between slavery and freedom there was and must 
be an " irrepressible conflict." Mr. Lincoln said " the govern- 
ment cannot endure permanently, half slave and half free. It 
will become all one thing or all the other." 

Meanwhile " Uncle Tom's Cabin " appeared. This was a 
novel in which some of the odious features of slavery were 
woven by genius and passion into a tale of fiction. This book 
was a revelation and the fomenter of a revolution. It brought 
tears to the eyes of children, and conviction and resolution to 
the hearts of men and women. It made hatred to slavery a 
sentiment and a duty. It hastened the ripening of the grow- 
ing demand for its final abolition. Except the Bible, no book 
has been printed in so many languages, or read by so many 
people in one generation. 

The republican party was formed out of the northern 
members of the whig and democratic parties who opposed 
the Kansas-Nebraska bill. The Republicans did not take the 
position of the Abolitionists, although they had the benefit of 
their support. They took the position that they did not war 
against the constitutional existence of slavery, but against its 
territorial extension ; though it might lawfully exist in the 
states under the Constitution, yet Congress had the power to 
exclude it from the territories, and that that power should be 
used ; that the repeal of the Missouri Compromise was a crim- 
inal breach of faith ; that slavery could only exist by virtue 
of positive law ; and that Congress should prohibit its exist- 
ence everywhere except in the states : that the Fugitive Slave 
Law should be repealed. 

The new party was the stronger, because not committed to 
the extreme views and measures of the Abolitionists. The 
Kansas and Nebraska scheme really rested upon the premise 
that Congress had no constitutional right to exclude slavery 
from the territories. The argument was that the power was 
not expressly conferred, and was denied by plain implication. 



198 CONSTITUTIONAL HISTORY. 

The territories were the common property of the whole United 
States, and were held for the equal benefit of the people of 
every state, and therefore no law could be passed prohibiting 
the people of any state from taking their property and enjoy- 
ing it there, whether that property was slave or of other kind, 
since such a law would discriminate against the owners of 
slave property ; and hence the Missouri Compromise restric- 
tion was unconstitutional, and any other would be. 

It was probably a sufficient answer to this position to assert 
that slaves are not property per se, but only by force of the 
law of the state where they are held in servitude, and when 
the slave is separated from the state whose law makes him a 
slave, he reverts to his natural condition of freedom ; and that 
to compel him to be a slave in a new territory, the law of that 
territory must so declare, and hence no slave can be continued 
as a slave in any territory of the United States, unless the law 
of or for a territory so declares. What the law shall be, it is 
for Congress, as the regulator of the territory, to declare, and 
Congress may declare either way, and hence can admit or ex- 
clude slavery from the territories. Under the Missouri Com- 
promise Congress was honorably bound not to admit slaves 
north of 36° 30'. 

The Constitution vests in Congress the power " to dispose 
of and make all needful rules and regulations respecting the 
territory or other property of the United States ; " but it was 
said by the friends of the bill that this provision only related 
to territory belonging to the United States at the time of the 
adoption of the Constitution ; and moreover it did not con- 
template the government of territory, but the sale or other 
regulation of it ; that the provision speaks of " territory or 
other property " of the United States to be disposed of, and 
in no way confers upon Congress the power to. govern the 
territory. This view of this provision of the Constitution 
was sanctioned by the majority of the United States Supreme 
Court in the celebrated Dred Scott case. 

The South underestimated the danger to the slavery cause 
arising from the fact that the constitutional position taken 
by the republican party opened so easy a door to the union 
of all anti- slavery elements, without at all committing the 



STRUGGLE OVER KANSAS. 199 

party to the extreme positions of the Abolitionists. The Re- 
publicans said they did not oppose slavery in the states where 
the Constitution permitted its existence ; that they only op- 
posed its extension into the territories where the Constitution 
permitted its restriction. But the argument against the ex- 
tension of slavery was practically and really the argument 
against slavery itself, and as that argument increased in fre- 
quency and intensity on the part of the North, the exaspera- 
tion of the South increased. 

In 1856 Mr. Sumner, a distinguished and eloquent senator 
from Massachusetts, made a speech in the Senate against 
slavery, and the attempt to extend it, and he chose to de- 
nounce the latter as " the crime against Kansas." This 
speech gave personal offence to a senator and representative 
from South Carolina. The representative, a Mr. Brooks, 
whilst Mr. Sumner was seated in his place in the senate 
chamber, struck him violently upon the head with a cane. 
Mr. Sumner suffered for years from the effects of this out- 
rage. But the blow had wider effects ; it helped to increase 
and consolidate the rising North against the existence, as 
well as the extension, of slavery. Thus the consequences of 
the republican position were practically the same as if the 
party had adopted the most ultra views of the Abolitionists. 
The Republicans advanced with the contest and became the 
assailants of slavery wherever it was practicable to strike it. 
They professed obedience to the Constitution, but it was ob- 
vious that the contest, which was rapidly assuming all the 
aspects and fierceness of a religious war, could only end in 
bloodshed or by the subversion or amendment of the Consti- 
tution. 

The Kansas-Nebraska bill having become a law, the Repub- 
licans and Abolitionists, defeated in Congress, determined to 
wage the contest in the territory itself, and if possible snatch 
the victory from the pro-slavery party. The law permitted 
the people of the territory to regulate their domestic institu- 
tions in their own way. New England rose to the contest, 
and organized emigrant aid societies. Money was freely con- 
tributed, and resolute men from Maine to the Mississippi 
River, carrying rifles on their shoulders or among their house- 



200 CONSTITUTIONAL HISTORY. 

hold goods, began to flock into Kansas. The pro-slavery 
people took alarm, and they too became vigilant and active. 
They had the vantage-ground of the adjoining slave state of 
Missouri, and could add to the forces gathered from distant 
states accessions when needed, by temporary migrations over 
the border. Kansas became the field of strife and bloodshed 
between the parties, who devoted themselves to proposing con- 
stitutions and fighting each other. It is not needful to enter 
into details. After six years of contest in Kansas, in Con- 
gress, and in the nation, victory passed to the side of the anti- 
slavery party, but not until after the election of Mr. Lincoln. 
Upon the withdrawal of sufficient senators and members of 
the House to give the Republicans the control, Kansas was 
admitted in January, 1861, with a free state constitution. 

But pending the struggle in Kansas it became apparent to 
the South that in practice, popular sovereignty would give the 
victory to northern zeal, wealth, and activity. In the cam- 
paign of 1856 the southern Democrats obliged the party to 
declare that the principle of state equality was a supplemen- 
tary part of the doctrine of popular sovereignty. The signifi- 
cance of this supplemental doctrine was not very generally 
perceived until the Dred Scott decision was pronounced. The 
Supreme Court held that under the Constitution the territory 
west of the Mississippi was not within the scope of the power 
of Congress " to make all needful rules and regulations respect- 
ing the territory or other property belonging to the United 
States ; " that this constitutional provision only referred to 
the territory " belonging " to the United States at the time of 
the adoption of the Constitution ; that the territory acquired 
from France by the Louisiana purchase was acquired under 
the treaty-making power, and could only be acquired for the 
purpose of making it into states, and that the United States 
acquired it as trustee for the equal benefit of all the states, 
and therefore could impose no restrictive conditions which 
would give to property in slaves any less protection in the 
territory than to other property ; and hence the Act of 1821, 
by which slavery was excluded from that territory north of 
36° 30', was unconstitutional and void. The court also held 
the act void because it deprived the slave-owner of his prop- 



THE DRED SCOTT CASE. 201 

erty without making due compensation. The court further 
held that a negro whose ancestors were brought and held 
here as slaves could not, although a free person of color, be 
a citizen of a state within the meaning of the Constitution 
respecting citizens of the United States ; that such persons of 
color did not constitute any part of " the people," as that 
term was used in the Declaration of Independence, or in the 
Constitution ; that if freedom was given by the laws of a free 
state to a slave who was brought by his master from a slave 
state into the free state, such laws had no effect when the 
slave returned or was carried back to the slave state, but the 
laws of the latter state controlled, and would revive and re- 
store his former condition of slavery. 

The South was for a time triumphant. The anti-slavery 
men of the North felt outraged and injured. If slavery was 
indeed guaranteed by the Constitution in all the territories, 
if the free negro, as well as the slave, under the federal Con- 
stitution " had no rights which the white man was bound to 
respect," the battle was hopelessly lost. It was plain that 
there was no standing-room left for the contest except by a 
popular revolt against such a Constitution. 

It so happened that two of the justices of the Supreme 
Court, Mr. Justice McLean and Mr. Justice Curtis, dissented. 
The latter delivered an opinion in which he negatived these 
propositions of the majority. He marshalled in cogent and 
luminous order the history and legislation of the states and 
nation, and proceeded to show that as matters of fact as well 
as of law, the free negro was a citizen of five of the states at 
the time of the adoption of the Constitution ; that citizenship 
of the United States only existed through citizenship of the 
states, and therefore the free negro could be a citizen both of 
the United States and of the states ; that the condition of 
slavery was contrary to natural right, and could only exist by 
positive law, and then only in the place where the positive law 
had force, and never in any other place or state ; that when a 
slave passed from the state whose laws made him a slave to a 
state whose laws made him free, he became, unless he was a 
fugitive, free ; and the condition of freedom once attaching, 
he became, if born in the United States, a citizen, and could 



202 CONSTITUTIONAL HISTORY. 

not be deprived of his right as a citizen, or of his liberty, with- 
out due process of law ; that the constitutional provision, giv- 
ing Congress power to " make all needful rules and regulations 
respecting the territory belonging to the United States," was 
framed with reference to territory to be acquired as well as to 
that already possessed, since at the time of the adoption of the 
Constitution Georgia and North Carolina had not yet ceded 
to the United States their " back country," but were expected 
to do so, and soon after did ; that Congress had power to ex- 
clude slavery from all territory, if it should judge such exclu- 
sion to be a " needful regulation ; " and hence the Missouri 
Compromise exclusion was constitutional. 

This opinion is now supposed to be a correct exposition of 
the constitutional questions involved. The Republicans, will- 
ing to be convinced, accepted it then as the truth, and de- 
nounced the decision of the majority of the court as a perver- 
sion of the Constitution and of the law. They denounced the 
court itself with unsparing bitterness. Posterity acquits the 
court of intentional error. While the judges could not escape 
from the influence of education, political association, and pre- 
dilections, they were not conscious of the influence, or if they 
were, they firmly believed that the law was as they declared 
it. The Dred Scott decision occupies over two hundred pages 
of the book of reports. Probably no other case was examined 
and decided with a more conscientious sense of duty and re- 
sponsibility. It will remain in the reports as a striking ex- 
ample of the influence of erroneous education and preposses- 
sions upon the minds of the best and ablest men. 

It was not easy for the Republicans to say that the decision 
would be defied, but it was easy to say that in due time it 
should be reversed, or the Constitution amended. This de- 
cision, added to the bitterness of the struggle over Kansas, 
weakened the adhesion of the northern wing of the demo- 
cratic party to the ultra pro-slavery policy of the South. The 
Democracy of the North could not be held together upon a 
slavery-extension platform. The popular sovereignty doctrine 
suited them better ; for they conceived that under it slavery 
in the territories could, as the phrase was, " be voted up or 
down," and whether one way or the other, the party was not 
responsible for the result. 



THE WAR OF THE REBELLION. 1 203 



The democratic convention in 1860 divided upon the ques- 
tion whether the Constitution itself extended slavery into the 
territories, or simply permitted it to be extended. Two con- 
ventions were held. Mr. Breckinridge was nominated by the 
southern, Mr. Douglas by the northern. Mr. Lincoln, the 
republican candidate, had an easy victory over the divided 
opposition. 

The crisis of the long struggle culminated upon the election 
of Mr. Lincoln. Slavery was left with only the southern 
wing of the Democracy for its champions and defenders. 
South Carolina was the first state to pass her ordinance of se- 
cession. Florida, Mississippi, Louisiana, Texas, Georgia, and 
Alabama followed. Mr. Buchanan yet remained President, 
and many measures were suggested to avert the dissolution of 
the Union. Congress recommended an amendment to the 
Constitution which forbade Congress ever to interfere with 
slavery in the states. For a time it seemed possible that 
slavery might be lifted to a stability and power beyond what 
it had ever attained. President Buchanan deplored secession 
as a calamity, but intimated his doubts whether Congress had 
any power of coercion to avert it. 

President Lincoln, in his inaugural address, said, u I have no 
purpose directly or indirectly to interfere with slavery where 
it' exists. I believe I have no lawful right to do so, and I 
have no inclination to do so." 

But the seceding states did not wish to return. They has- 
tened to assemble, and they formed their own federal govern- 
ment, which they styled " The Confederate States of America." 
They recognized slavery, and practically adopted the same 
sort of government which they had all along claimed the 
United States rightfully was, and would have been, had its 
Constitution been strictly construed, and implied and construc- 
tive powers rejected. 

Shortly after the accession of Mr. Lincoln hostilities began. 
Thereupon Virginia, North Carolina, Tennessee, and Arkansas 
joined the southern confederacy, making eleven states in all. 
Delaware, Maryland, Kentucky, and Missouri, with feeble 
majorities and faltering fidelity, remained in the Union. 

The United States, or what remained of it, resolved to sub- 



204 CONSTITUTIONAL HISTORY. 

due the rebellion. The right to do this has been much de- 
bated. In any argument of the question, the conclusion to be 
reached depends upon the premises stated. That every na- 
tional government has the right to employ all its might to pre- 
vent its own destruction would seem to be demonstrated by 
the universal assertion of that right. It obeys the law of self- 
preservation. It is a useless disputation which denies the 
right. It will be asserted while the strength remains to vin- 
dicate it. Even Mr. Buchanan receded from his feeble posi- 
tion of the want of constitutional power to coerce obedience 
and submission. The sword is the final argument ; if you do 
not concede its force you may lose your life. The United 
States resorted to arms to preserve its existence and integrity 
and to demonstrate its right to both. It declared its purpose 
was to preserve and restore the Union. It disclaimed any in- 
tention to interfere with slavery in the states where it consti- 
tutionally existed. 

The North, especially, determined that the Union should 
be preserved at all hazards. The power of the people was 
then shown. The government would have been helpless if 
the people had not risen to support it. If the people had 
been inactive, or unwilling to respond to the calls of the Presi- 
dent and of Congress, the national government would have 
been paralyzed and powerless. To subdue the rebellion was 
altogether too stupendous an undertaking for the ordinary 
compulsory machinery of the government. But the people 
stood behind it and went before it. With a loyalty and 
patriotism which only great crises can evoke, they welcomed 
as a duty the sacrifice and cost of the struggle. The people 
were greater than the Constitution, the laws, and the govern- 
ment combined ; they rose to preserve and defend them, to 
the end that when the Union and peace should be restored, 
the Constitution, the laws, and the government might sur- 
vive to regulate and govern the whole people of an undivided 
country. 

But the rebellion was not to be subdued easily. The status 
of the slaves became important. General Fremont early pro- 
posed to free them in Missouri, but the President overruled 
him. The slave was disposed to regard the Union soldier as 



EMANCIPATION PROCLAMATION. 205 

his friend. The war began with a disclaimer of intent to free 
the slave, but as it went on, public sentiment began to demand 
a reversal of this declaration of purpose, and less tenderness 
in preserving his master's title to him. General Butler greatly 
gratified this sentiment by declaring the slave " contraband 
of war." This was grim humor, and the people enjoyed the 
joke and applauded its result. 

In September, 1862, the President gave notice that he 
would emancipate the slaves if the seceding states did not 
return to their allegiance by the first of January, 1863. He 
had little reason to expect their return, and he gave this 
notice in order to make the way a little easier for the procla- 
mation of emancipation, and to prepare the public to expect 
and to accept it. The first of January, 1863, arrived, and the 
proclamation was issued. The North recognized its necessity 
and applauded its justice. Hundreds of thousands welcomed 
it as the declaration of the true object for which the war 
should be waged. Thus the hopes of the most radical were 
realized. The war wrought a great revolution in northern 
sentiment. The name " Abolitionist " ceased to be a term of 
reproach. After the Emancipation Proclamation, vast multi- 
tudes of Republicans and Democrats became Abolitionists in 
sentiment, and would have regarded the war a failure if peace 
had been declared with slavery reinstated. Slavery was hate- 
ful in itself ; it was the cause of the war ; it deserved to perish ; 
now was a good time to end it ; if permitted to survive, it 
might lead to war again. There were many who regarded this 
proclamation as a violation of the Constitution, but the loyal 
answer was that while the war lasted, it was disloyalty to 
stickle over the Constitution, since unless the war could be vic- 
toriously ended, the Constitution itself would be of no value. 

But the true answer is, that as commander-in-chief of the 
army and navy the President has the constitutional power to 
employ the means recognized by the laws of war as necessary 
to conquer the enemy. Congress can pass no law which can 
deprive the President of the powers which the Constitution 
confers, in creating him commander-in-chief. 

Congress repealed the Fugitive Slave Law in 1864. When 
the war was nearly ended doubts arose as to the scope of the 
Emancipation Proclamation. It was urged that as a war 



206 CONSTITUTIONAL HISTORY. 

measure it Lad no effect except in the case of those com- 
batants who were aiding the rebellion ; since the prosecution 
of the war presented no necessity to use war measures against 
non-combatants, and the rules of war do not justify resort to 
any measures not apparently necessary or conducive to suc- 
cess. This construction would limit the scope of the emanci- 
jDation, and leave great numbers in slavery. To make the 
emancipation complete, the Thirteenth Amendment was pro- 
posed by Congress and ratified by the requisite number of 
states. Slavery was constitutionally ended. The Dred Scott 
decision was superseded. The nation was led through war 
and blood that slavery might be abolished. Daniel Webster 
said : " There is not a monarch on earth whose throne is not 
liable to be shaken by the progress of opinion, and the senti- 
ment of the just and intelligent part of the people." The 
progress of opinion shook the republic almost to its fall, in 
order to reestablish it upon the foundation of the Declaration 
of Independence. 

A word with respect to President Lincoln. Every one now 
knows that he had a rare combination of goodness and great- 
ness, of common sense and of uncommon sagacity. Our 
people scarcely knew him when he became President, and 
they had a painful distrust of his fitness for his high place in 
the alarming emergency which ensued. But he soon began 
to disclose the great qualities which his modest career had 
hitherto concealed. Patient, cheerful, thoughtful, and delib- 
erative, we knew him to be ; but the war was to prove how 
energetic, capable, hopeful, courageous, firm, and just he was. 
He safely led our people through the great crisis and danger. 
He had courage amid peril, confidence among the doubting, 
firmness against opposition. His energy evoked and directed 
the mightiest resources ; his moderation restrained the im- 
petuous ; his wisdom governed in the council and inspired in 
the field. His hope was a strength. His manner was mild 
and cheerful, and unchangeable by censure or injustice. He 
tempered the severities of war by his benevolence and fair- 
ness, and at last compelled the conquered enemies to expect 
more from his sense of justice than from any other resource. 
He was murdered as he sat in a chair ; the nation now ranks 
him among her greatest men. 



LECTURE IX. 

THE RECONSTRUCTION PERIOD. 

The Negro as a Citizen and Voter. — International Arbitra- 
tion. — Interstate Commerce. — Era of Great Enterprises. 
— Tariff. — Taxation. 

General Lee surrendered to General Grant in April, 
1866. The immediate question then was : What are the 
relations between the United States and the seceded states ? 
That the latter should be restored as states of the Union was 
believed to be the object ultimately to be attained ; but how 
to adjust the terms and conditions of their return, and what 
these should be, was a problem of the greatest difficulty. 
President Lincoln notified the generals of our armies that he 
reserved these questions to himself. In his last public ad- 
dress, made only four days before his death, he said : " It 
may be my duty to make some announcement to the people of 
the South. I am considering and shall not fail to act when 
satisfied that action will be proper ; " but he was assassinated 
within a week after Lee's surrender, and Andrew Johnson 
became President. 

President Johnson was another remarkable product of 
American Democracy. Learning to read after he had nearly 
attained his majority, he supplied in some sort by his maturer 
diligence the lack of early advantages. By dint of native 
force he rose from poverty and obscurity to the foremost po- 
sitions in his state and in the nation. He fought his way 
upwards, and his disposition and temper led him to hate the 
men and systems which opposed his rise. He hated slavery 
because the system accorded no place nor respect for the toil- 
ing white man. He hated treason because he knew so many 
whom he regarded as traitors who had been his personal ene- 
mies. He loved liberty and his country because but for them 



208 CONSTITUTIONAL HISTORY. 

he had never risen from his low estate. He was honest, 
aggressive, and passionate, and took counsel largely of his 
feelings. Had he been a Frenchman of the era of the Rev- 
olution he probably would have been a Jacobin, foremost to 
strike for liberty, and foremost to be struck by its ven- 
geance. Booth's pistol lifted him suddenly to the supreme 
place in the nation. The crisis in his country's destiny was 
momentous ; his own power and influence commanding. The 
fate of the South seemed committed to his hands. 

The reconstruction problem was not in the minds of the 
framers of the Constitution. Ample power was given by the 
provision that " The United States shall guarantee to every 
state a republican form of government ; " but how and by 
whom that power should be wielded was not defined. It is 
true that the Constitution gave to Congress the power " to 
make all laws which shall be necessary and proper to carry 
into effect the powers vested by the Constitution in the gov- 
ernment of the United States," but the laws remained to be 
passed, and Congress was not now in session. The Constitu- 
tion was obviously made for states in the Union, and not for 
seceding states compelled to return — theoretically in but 
practically out. The problem was, as Mr. Lincoln had ex- 
pressed it, how to restore these states to their practical rela- 
tions to the Union. Who should take charge of the business, 
the President or Congress? The war was over, but care was 
necessary lest the objects of the war should be lost. These 
objects had changed as the contest advanced. 

In 1861 Congress by a joint resolution declared the objects 
to be, " to defend and maintain the supremacy of the Consti- 
tution, and all the laws passed in pursuance thereof, and to 
preserve the Union with all the dignity, equality, and rights 
of the several states unimpaired ; that as soon as these ob- 
jects are accomplished the war ought to cease." But in 1865 
slavery had been overthrown, and the national demand, after 
peace had been coerced, was very different from its demand 
when peace was first disturbed. 

It was now April, and Congress would not meet until De- 
cember. President Johnson resolved to attempt the solution 
of the difficulties which confronted him without aid from 



LINCOLN'S PLAN OF RECONSTRUCTION. 209 

Congress. In this he seemed to be justified by the action 
and declarations of President Lincoln. Mr. Lincoln had 
plainly indicated in dealing with the State of Louisiana, before 
his reelection, a purpose to take charge of the reconstruction 
of the seceding states. With the triumph of our arms we 
had obtained possession of the Mississippi River, and military 
control of the State of Louisiana. Mr. Lincoln was anxious 
to establish civil government in that state upon the suffrages 
of those who would resume their loyalty to the Union. 
Under the direction of the military governor two members 
of Congress were chosen, and in 1863 they were admitted to 
their seats. Mr. Lincoln conceived that under the constitu- 
tional obligation to guarantee to every state a republican form 
of government, it would be practicable to form such a govern- 
ment in Louisiana and uphold it by military power. His idea 
was to start with not less than one tenth of the electors. These 
should, upon taking the proper oath of loyalty and obedience, 
receive restoration to their civil rights and property, except 
as to slaves, and be permitted to establish the civil govern- 
ment. In 1864 steps were taken in that state to carry out 
the President's plan. State officers were chosen and an anti- 
slavery constitution adopted. A little more than one tenth 
of the electors participated in the elections. The State of Ar- 
kansas the same year took similar action. Of course neither 
of these governments could sustain itself without the military 
support of the nation. Nevertheless, Mr. Lincoln's idea was, 
as he expressed it, that "they constituted the eggs from 
which a government could be hatched, and grow to be full 
fledged." Congress dissented sharply. It refused to admit 
the representatives sent by Arkansas, alleging that the rebel- 
lion was not yet suppressed there, but only held in check. 
It passed a bill for the establishment of governments in the 
rebellious states. This bill authorized the President to ap- 
point a provisional governor for every one of these states. 
When armed resistance to the United States should cease in 
any state the governor should enroll the electors, and appoint 
an election for delegates to a constitutional convention ; this 
convention should frame a constitution conforming to the Con- 
stitution of the United States, abolishing slavery, disfranchising 

14 



210 CONSTITUTIONAL HISTORY. 

certain confederate officers, and repudiating the rebel debt. 
If adopted by the voters, it should be certified to the Presi- 
dent, and if approved by Congress, the state government 
should be considered as properly reconstructed. Congress 
thus plainly asserted its objections to the President's plan of 
reconstruction, and its determination to control the matter it- 
self. Mr. Lincoln was a candidate for reelection, but he 
refused to approve the bill. He said he was unwilling to 
commit the government to an inflexible plan ; that the plan 
proposed by Congress was proper for states choosing to adopt 
it, and he would try and carry out the plan by means of mil- 
itary governors. An attempt was now made to defeat Mr. 
Lincoln's reelection by charging him with an assumption 
of unwarrantable executive power, and a usurpation of the 
functions of Congress. But his reelection demonstrated that 
he had the confidence of the people. Beyond doubt he in- 
tended to manage the reconstruction of the state governments 
without any direction from Congress. He meant to move 
carefully, securing the assistance of all loyal white men, striv- 
ing constantly to increase their number, bringing to their aid 
the best portion of the blacks, guarding all by military power 
if it should be necessary, and moving, as he expressed it, from 
point to point as far ahead as he could clearly see, and chang- 
ing his course when he discovered that it was necessary, or 
that he had made a mistake. What his plans would have 
developed into he did not know, but he was confident that 
they could be moulded to meet the emergencies of the situa- 
tion and finally restore all the states to the Union. 

President Johnson, unfortunately for himself, did not in- 
herit the commanding influence of Mr. Lincoln, nor the quali- 
ties which inspired it. His first public utterances after his 
accession to the presidency were in fierce denunciation of the 
rebellion as treason, and of its principal leaders as traitors, 
richly deserving the punishment appointed for that crime. 

The southern leaders who had buffeted and denounced him 
as a pestilent renegade were appalled by the violence of his 
denunciations, and by the vengeance he seemed ready to 
wreak upon them. They soon became suppliants for his 
favor, and used their best efforts to conciliate him. He sur- 



JOHNSON'S PLAN OF RECONSTRUCTION. 211 

prised both his friends and enemies by a sudden change in his 
tone and temper. He became forbearing, forgiving, magnani- 
mous. His revised intention was to allow the seceding states 
to resume their self-government, and their places in Congress, 
without exacting from them any guarantees, beyond their for- 
bidding slavery and repudiating the debts incurred in aid of 
their rebellion. 

On the 29th day of May, 1865, he issued an amnesty procla- 
mation, pardoning the greater part of those who had partici- 
pated in the rebellion, and restoring their property except as 
to slaves, upon the simple condition that they should sub- 
scribe and take an oath to support and defend the Constitu- 
tion and the Union of the states under the Constitution, and 
obey all laws and proclamations in regard to the emancipation 
of slaves. Various classes of the most influential and obnox- 
ious participants in the rebellion were excluded from this 
pardon ; but these were advised that their individual applica- 
tions would be favorably considered. He declared that the 
rebellion in its revolutionary progress had deprived the people 
of all civil government. He appointed a provisional governor 
of the State of North Carolina, and soon after of seven other 
states. He enjoined these governors to make provision for 
the election of loyal delegates, and for their meeting and fram- 
ing a new state constitution. Thereupon and in accordance 
with such new constitution, the legislature should meet and 
frame the proper laws. Those persons who had the qualifica- 
tions of voters under the laws existing at the date of the state 
ordinance of secession, and who should take the oath above 
prescribed, were to be entitled to vote for delegates to the 
constitutional convention ; this convention and the legislature 
should prescribe the qualifications of electors and the eligi- 
bility of persons to hold office. This proclamation recited 
that this " power, the people of the several states composing 
the Federal Union have rightfully exercised from the origin 
of the government to the present time." 

These provisional governors were thus practically made the 
supervisors of the reconstruction of the state governments, 
and under this system the way seemed short and easy for the 
states to resume their former places in the Union. But it 



212 CONSTITUTIONAL HISTORY. 

was seen that the negro had no privilege of voting in the first 
instance, and it was not to be expected that the right would 
be accorded him under the new state constitutions ; no 
guarantee that justice should be done him was exacted. These 
new constitutions were formed, the legislatures met, laws were 
made, senators and representatives to Congress were chosen ; 
but the negro was not only not admitted to any participation 
in the government, but the new legislatures shocked the 
northern sense of justice by the cruel and revengeful laws 
which they enacted. The barbarity of the most odious slave 
code was under various disguises applied to the negro in his 
new condition of freedom. 

Poverty was declared evidence of vagrancy. Negroes who 
were orphans or unprotected were condemned to an appren- 
ticeship until they became of age — twenty-one years for 
males, eighteen for females. Their masters were given au- 
thority to punish them for offences, of which the master was 
appointed the judge ; if the apprentice fled from this bondage, 
the master could pursue and capture the fugitive. The law 
against vagrancy was so framed as to embrace the great mass 
of the colored population. Inexperienced in their new free- 
dom, a condition of vagrancy might well be expected to pre- 
cede their acceptance of the more stable settlement and pur- 
suits which the demand for their labor would afford, and 
necessity ultimately enjoin. The vagrant blacks were made 
liable to arrest and fine, and if unable to pay the fine they 
were to be hired out to the bidder who would pay the fine for 
the shortest term of service. If a negro should make a con- 
tract to perform service and should violate it and leave the 
service, his employer was authorized to arrest him and com- 
pel his performance of the service, and the expenses of his 
arrest might be charged against his wages. 

It is proper to say that the same laws were not enacted in 
all the seceded states, but their purpose and effect were the 
same in a majority of them. The fact that such laws were 
enacted anywhere exasperated the North to an extreme de- 
gree. 

The reconstruction scheme of President Johnson was doomed 
to failure from the start. He was unfortunate in his assump- 



FAILURE OF THE PRESIDENT'S PLAN. 213 

tion of great and questionable powers without any legislation 
to give the powers proper regulation and effect. He was un- 
fortunate in his sudden change of sentiment towards the se- 
ceded states and their leaders. Doubtless he meant all for 
the best. He was unfortunate in the abuse made of his clem- 
ency. He conceived that it; would be happy for his fame if he 
could bind up the wounds of his bleeding country, and wel- 
come back into the Union the once erring but now submissive 
states. He mistook the temper of both the North and South. 
He had little facility to perceive his mistakes, and less to cor- 
rect them. His obstinacy and passion increased the more he 
was opposed. He clung to the impracticable until he was 
crushed ; and his defeat and humiliation were signal and irre- 
mediable. 

There has been much speculation concerning the course Mr. 
Lincoln would have pursued and the issue of it. But cases 
which exist only in the imagination are generally settled ac- 
cording to the wishes of the dreamer. 

It would seem that a fatal delusion seizes the Vice-President, 
when by casualty he becomes President. He seems to feel 
that the office bestowed by misfortune or crime should be re- 
newed by the people. But this the people have never done. 
Probably they never will. The people link the calamity 
which elevates to the elevation itself, and refuse to renew the 
one, lest they seem to condone or approve the other. 

Congress met in December, 1865, alarmed and indignant. 
It was plain that the seceded states, encouraged by President 
Johnson's construction of the Constitution and of his powers 
under it, and by the scheme of reconstruction which he had 
set on foot, felt they had full room to give force to their re- 
sentment, and to avenge upon the negro the humiliation and 
defeat they had sustained in their appeal to arms. That they 
should regard the negro as unfit for freedom, and the indirect 
cause of their calamities, was entirely natural. It is probably 
too much to expect that human nature should graciously ac- 
cept the unwelcome conditions imposed by the force of a con- 
quering enemy. 

The people of the seceded states believed their cause to be 
just. They placed their all at hazard in its support and de- 



214 CONSTITUTIONAL HISTORY. 

fence ; and they lost. Their slaves might become their mas- 
ters, or their own avengers, unless every obstacle was inter- 
posed. Revenge, a sense of danger, and bitterness of spirit 
inspired them, and made them unjust. But Congress rightly 
determined that while the nation was sitting in judgment upon 
the subdued insurgents and exacting security for the future, 
if not indemnity for the past, the offenders, who were brought 
before the bar of the nation, should not take seats upon the 
bench of judges. The difference between states subdued by 
conciliation and states subdued by force of arms would seem 
to justify difference in treatment. 

Congress was at first distracted by the variety of plans for 
reconstruction which were proposed, but it ultimately took 
charge of the business with a strong hand. It resolved to re- 
pudiate the President's plan, and frame one of its own. To 
do this it was necessary to pass laws over the veto of the 
President. The event showed that it had the two thirds nec- 
essary for this purpose. Congress adopted a plan of recon- 
struction, upon the theory that the war continued until the 
states should, by abolishing slavery, adopting universal suf- 
frage, and conforming their governments to the new order of 
things, give reasonable assurance that there should be no 
governmental discrimination against the black man, no danger 
of his losing his equality of right ; and that the new Union 
should be guaranteed by the votes of the emancipated slaves. 

The details would be long to narrate, but the results may 
be briefly stated. Congress declared that it was the deposi- 
tary of the power to devise the proper plan of reconstruction ; 
it refused to recognize the governments established in the se- 
ceded states under their new constitutions ; it would not ad- 
mit their senators and representatives ; it repudiated and de- 
nounced their laws respecting the negroes. It first passed a 
Civil Rights Bill by which it conferred citizenship and equality 
of rights upon the negro. It then proposed the Fourteenth 
Amendment, and offered to receive any state into the Union 
upon its ratification of this amendment. Tennessee alone 
ratified and was admitted. The other ten states refused to 
ratify. Relying upon the plan and advice of the President, 
some of these states rejected the amendment unanimously ; 



THE CIVIL RIGHTS ACT. 215 

others rejected it with substantial unanimity. Congress then 
superseded the state governments and established military 
governments over the states. It provided that the people of 
these states might relieve themselves from the military gov- 
ernments upon the ratification of the Fourteenth Amendment, 
and upon their adopting such constitutions and governments 
as Congress should approve ; the essential requisites of which 
should be equality of rights and of suffrage to the black man. 
The elections at the North gave to Congress such a prepon- 
derance of power over the President that the seceded states 
finally acceded to the plan proposed by Congress, and were 
ultimately restored to their self-government and places in the 
Union. 

The struggle between the President and Congress was 
long and bitter, and finally culminated in an ill-advised and 
unjust attempt to remove him by impeachment ; an attempt 
which failed by only a single vote. 

It was not at first the intention of Congress to confer suf- 
frage upon the emancipated slaves. But the struggle in 
which it engaged with the President, and the cruel laws 
which the Southern States enacted with respect to the negro, 
created a revolution in the public mind at the North, and led 
to universal suffrage and citizenship, North as well as South. 

This is the great constitutional result of the reconstruction 
period. Its other phases were means to this end, or its re- 
sults. Grave doubts existed with respect to the constitution- 
ality of the Civil Eights Act. According to the Dred Scott 
decision, the free negro, although the state of his birth and 
residence might confer upon him all the rights of state citi- 
zenship, was incapable of becoming a citizen of the United 
States. According to the dissenting opinion of Mr. Justice 
Curtis, citizenship of the United States only existed through 
citizenship of a state. If, therefore, in the one case, the 
United States never had the power to make the colored man 
a citizen, and if, in the other, only the state could make him a 
citizen, Congress exceeded its powers in attempting to confer 
citizenship upon him. The difficulty, however, was met by 
the Fourteenth Amendment. This was proposed to the states 
for ratification in June, 1866. Its ratification was proclaimed 
July 20, 1868. 



216 CONSTITUTIONAL HISTORY. 

Its first clause provided : " All persons born or naturalized 
in the United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the state wherein 
they reside." Thus birth in the United States and subjection 
to its jurisdiction constitute one a citizen of the United States ; 
while the addition of residence in a state makes a citizen of 
the United States a citizen of the state. The Supreme Court 
has since held that an Indian born in the United States, but 
member of a tribe, is not a citizen, for the reason that he was 
not born subject to the jurisdiction of the United States, but 
of his tribe. 1 Mr. Justice Miller, speaking for the court, 2 said 
that the phrase " subject to the jurisdiction thereof " was in- 
tended to exclude from citizenship "children of ministers, 
consuls, and citizens, or subjects of foreign states, born in the 
United States." It is difficult to see how the children, born 
here of parents of any nationality other than that of the In- 
dian tribes within the United States, can be excluded from 
citizenship. The foreigner who comes here in the official 
employment of his home government is by comity regarded 
as subject to the jurisdiction of that government, but the un- 
official foreigner is, while here, subject to the jurisdiction of 
our government. The children of the latter born here seem 
to come within the exact terms of the Constitution. Treaty 
regulations with his home government may provide that his 
children shall not become citizens ; but the Constitution is 
paramount, and the right it confers upon the child born 
here is manifestly above invasion or diminution by any treaty. 
We reserve for a subsequent lecture the consideration of vari- 
ous questions involved in the Fourteenth Amendment. Its 
immediate effect and purpose were to place the negro within 
the national protection, and confer upon him every right and 
privilege of a national citizen. It did not confer the right 
of suffrage upon him, but in connection with the Fifteenth 
Amendment it led to and procured the right. The ratification 
of the last amendment was proclaimed March 30, 1870. 

The immediate effects of conferring the right of suffrage 
upon the freedmen were bad enough. Unscrupulous north- 

1 Elk v. Wilkins, 112 U. S. 94. 

2 Slaughter-House cases, 16 Wallace, 36. 



CARPET-BAG GOVERNMENT. 217 

ern adventurers flocked to the reconstructed states in the 
hope of political and other advantage. Their meagre estate 
and their transient sojourn caused them to be defined as "car- 
pet-baggers." The negro, naturally regarding the northern 
Republican as his friend, too readily became his tool and 
accomplice in schemes of official corruption and plunder. 
The carpet-bagger was installed in the executive office, and 
the negro in the legislatures. Under their new state constitu- 
tions the debts incurred in aid of the rebellion were repudi- 
ated. This gave to some of the states an almost unincumbered 
capital of credit. The spoliation of the state began. Large 
appropriations for fictitious or criminally inflated claims were 
made. State bonds for one scheme or another were issued, 
and the bonds practically stolen. The accession of the negro 
and carpet-bagger to power was followed by organizations 
among the lawless white inhabitants to expel or punish the 
carpet-bagger, and to overawe the negro. The most formi- 
dable of these organizations was known as the Kuklux Klan, 
and its acts of desperate and criminal violence made its name 
a terror. The national government put forth the utmost ef- 
forts to crush it out and punish its members. The national 
troops were quartered in various parts of the Southern States 
to preserve order, suppress unlawful assemblages, and secure 
free and peaceful elections. 

Gradually peace and order were restored. As the troops 
were withdrawn, and the disabilities of those who had engaged 
in the rebellion were removed by executive pardon or gen- 
eral amnesty, the white inhabitants at the South united to 
control the elections. They did control them, not by superior- 
ity of numbers, but by superior skill and audacity. So long 
as the law was observed the negroes could outvote the whites. 
But the whites disregarded or evaded the law, and when the 
total of the count was announced the white candidates stood 
at the head of the list. With the overthrow of the carpet- 
bagger the negroes were bereft of their political protectors and 
leaders, and did not themselves have the capacity or vigor to 
assert and maintain their own rights. With the withdrawal 
of the troops the republican ascendency gave place to the 
democratic, and the white man's government was restored. 



218 CONSTITUTIONAL HISTORY.' 

Since the accession of President Hayes in 1877, there has 
been a "solid South" in favor of the democratic party. 
This has been the occasion of some bitterness of feeling at the 
North, perhaps more of disappointment and regret over lost 
prestige and power, than any well-grounded claim that the 
negroes as a class have not been humanely treated. Their 
right to vote and to have that vote freely cast and truly 
counted is unquestioned. Now that it is fully declared and 
established by law, the best guarantee of the negro's realiza- 
tion of his right must be found in his own appreciation of its 
value and importance. The appreciation of others who sym- 
pathize with him must necessarily prove inefficient; it will 
be spasmodic and passionate, and will not escape the imputa- 
tion of finding its inspiration in a desire to profit by the vote 
itself. It would be unwise to put him in ward, and take his 
guardian's vote. Nevertheless, such sympathy and interest 
will prove helpful. The character of the South is at stake, 
and, unless its morality is abnormal, it cannot long be willing 
to justify injustice simply because the object of it is unable to 
escape it. 

Meanwhile the negro has been advancing. Equality of 
rights is guaranteed by the Fourteenth Amendment. In 
order to give schools to the white children, schools must be 
given to the black, and they have been. If in everything he 
is not the equal of the white man before the law, it is be- 
cause he has not yet become bold and strong enough to enter 
into the full possession of his inheritance. As the war of the 
rebellion recedes further and further into the past, the bitter- 
ness which caused it, and which it caused, is abating. The 
negro will ultimately be accorded all that equality of right 
and of suffrage in this country which he can take and hold 
without a guardian. How high he will rise in the scale of 
ability and intelligence is a problem which centuries may be 
needed to solve. The prejudice which exists against him, 
simply upon account of his color, is peculiar to the provincial 
narrowness which we have acquired and inherited, and will 
be dissipated with time, if we advance in civilization and 
knowledge of mankind at large. He will find his true place, 
and will be estimated at his real worth. If nature has so 



MANHOOD SUFFRAGE ESTABLISHED. 219 

formed his blood and brain and nerve that he is doomed to 
inferiority, no human law can avail against it, no guardian- 
ship will elevate, though it may protect him. If his inferi- 
ority is the temporary result of acquired heredity, of centu- 
ries of barbarous ancestry and neglect, he will resume under 
better conditions his original vigor. 

The law at last accords him justice and equality of right, 
and an equality of privilege with the white man. He may 
now take that place in life and among men to which, in the 
words of the Declaration, " the laws of nature and of nature's 
God entitle him." For his sake the law that " is higher than 
the Constitution " is made part of the Constitution itself. 

Although negro suffrage was forced upon the seceded states, 
it was in many of the Northern States only accorded to blacks 
who had a certain property or freehold qualification. This 
was rarely required of the white citizen. This disparity of 
privilege was removed by the Fifteenth Amendment to the 
Constitution. This provides that " The right of citizens of 
the United States to vote shall not be denied or abridged by 
the United States, or by any state, on account of race, color, 
or previous condition of servitude." No state can now deny 
the right to vote to any colored man except upon the same 
terms that it denies it to the white man. Manhood suffrage 
thus becomes the almost universal rule. 

The settlement by arbitration of the claims of the United 
States against England on account of the depredations com- 
mitted during the war by the confederate cruiser, the Alabama, 
was perhaps the most important event of the administration 
of General Grant. Its history has its proper place in interna- 
tional law, but its importance gives it the weight of a constitu- 
tional enactment. The Alabama was purchased by the Con- 
federacy in England. Our minister was advised of the object 
of her purchase, and he remonstrated with the English govern- 
ment against her departure. England either disregarded the 
remonstrance or was tardy in attending to it. The Alabama 
effected her departure from English waters in July, 1862. 
She ravaged our merchant marine until June 19, 1864, when 
she was sunk in an engagement with the United States 



220 CONSTITUTIONAL HISTORY. 

steamer Kearsarge off the coast of France. She had captured 
or destroyed fifty-eight of our merchant vessels. Our govern- 
ment claimed that England had violated the laws of neutral- 
ity in permitting, with notice of her purpose, the Alabama 
to depart from her shores, and that therefore she should make 
good the damages which the owners of the destroyed property 
had suffered. England was slow to respond to this claim. 
But finally in 1870 she joined with the United States in the 
formation of a commission of ten members, five to be chosen 
by each government, authorized to provide suitable measures 
for the adjustment of all differences between the two govern- 
ments. This commission provided by a treaty that a tribu- 
nal of arbitration to be composed 6i five members, one to be 
chosen by each government, one by the king of Italy, one by 
the president of the Swiss Confederation, and one by the 
Emperor of Brazil, should meet in Geneva and hear the Ala- 
bama claims and decide upon them. Three rules for the 
guidance of the tribunal were agreed upon. These were in 
substance : First, A neutral nation must be diligent to pre- 
vent the fitting out within, and the departure from, its juris- 
diction of a vessel which it has reason to believe is to cruise 
against a friendly power. Second, It must not permit its 
ports or waters to be used as a base of hostile naval operations, 
or to obtain recruits of men or military supplies. Third, it 
must be diligent to prevent such use and the procurement of 
such, supplies. The tribunal should decide whether England 
had violated either of these rules, and if it should find that it 
had it should award damages. The tribunal after a full hear- 
ing awarded the United States fifteen millions of dollars. 
The importance of this arbitration consists in its substitution 
of peaceful discussion and just decision for the arbitrament of 
war in national disputes. Thus peace has her victories no 
less than war. 

The Electoral Commission which awarded the presidency 
to Mr. Hayes instead of Mr. Tilden in 1877 is an illustration 
of the tendency of the American people to exhaust all the 
resources of peace in the settlement of important and excit- 
ing controversies, and thus avert civil war. 



INTERSTATE COMMERCE. 221 

The result of the election in Louisiana, Florida, Oregon, and 
South Carolina was disputed, and the question was who should 
decide which presidential electors had been chosen and whose 
votes should be counted. An electoral commission was or- 
ganized, under an act of Congress passed for the purpose, and 
it decided the dispute in favor of Mr. Hayes. The justice 
of the decision was gravely challenged, but its validity was 
universally acknowledged and gratefully accepted as a happy 
escape from a perilous situation. Since then Congress has 
passed an act which it is hoped will be effectual to settle all 
future difficulties of the like kind. 

The administrations of Presidents Hayes, Arthur, and 
Cleveland, were very much alike. These three Presidents 
were plain and honest gentlemen, devoted to the welfare of 
their country, without ostentation or attempt at brilliant 
measures. Their best qualifications were honesty of purpose, 
fair ability, and plain common sense. They took it for granted 
that the government was happily constituted, and only needed 
to be honestly and intelligently administered. 

The country prospered to an almost fabulous degree. The 
prosperity seems to be substantial, and there is every reason 
to believe that it will suffer no sudden check. 

Probably the most important governmental act of any of 
these administrations was the passage of the Interstate Com- 
merce Law of 1887. The interstate traffic of the country has 
grown to be enormous. On the first of December, 1887, there 
were 137,986 miles of railroad in the country. 1 These roads 
cost about seventy-five hundred millions of dollars. Two hun- 
dred and sixty-seven and one half millions of dollars, or about 
three and one half per centum of this cost, was paid in interest 
and dividends the preceding year. In order to pay three and 
one half per centum, at least five times as much must be 
earned. The total earnings, therefore, must have been thirteen 
hundred and twenty-seven and one half millions of dollars, a 
sum of money utterly incomprehensible. These figures give 
no idea of the value of the property transported, and there are 
no means of ascertaining it. 

When the Constitution was adopted, interstate commerce 
1 Report of the Interstate Commerce Commission, 1887. 



222 CONSTITUTIONAL HISTORY. 

was comparatively insignificant. Not until the advent of rail- 
roads was there any great change. Railroads were constructed 
under state laws. The nation only interposed through its 
Supreme Court in order, when a proper suit was brought, to 
restrain state interference with interstate commerce or taxa- 
tion upon it. It did not assume power to regulate. Great 
abuses arose. It is readily seen that without equal rates for 
equal privileges, the men or cities especially favored will pros- 
per at the cost and ruin of those who are not so favored. The 
main object of the Interstate Commerce Act is to make the 
rates of transportation from one state to another, or across one 
or more states, truly proportional to the actual value of the 
transportation, and thus prevent giving to one a favor which 
must be compensated by extortion from another. The nation 
cannot regulate the cost of transportation when it begins and 
ends within a state ; for the grant of power to Congress is to 
regulate commerce among the several states. The purpose of 
the act is just, and the act itself, if wisely administered, must 
prove beneficent. 

With the decline of interest in other questions the tariff 
again rises to prominence. Whether the duty upon imports 
shall be imposed for revenue only, or to protect our productions 
against foreign competition in addition to the provision for 
the necessary revenue, is still vigorously debated. The philo- 
sophical exponents of political economy generally insist that 
the tariff should be for revenue only. The practical effect of 
such a policy is free trade. The constitutional objection is no 
longer urged, and the question is one of business expediency 
and of common honesty. The free trade argument in brief is 
that no tax should be levied except for the use of the govern- 
ment ; that any tax upon the consumer for the support of the 
producer is a form of extortion or robbery ; that if the duty is 
limited to those articles which we do not produce, such as tea, 
coffee, spices, etc., then the government receives the entire 
avails of the tax, less the mere cost of its collection. But if 
the duty is imposed upon imports of a kind which we also pro- 
duce, as upon cloth, iron, sugar, etc., then the government re- 
ceives the tax upon the imported portions only, and the home 
producer receives it also upon his production of the like ar- 



THE TARIFF QUESTION. 223 

tides to the extent that the duty upon the imported articles 
enables him to increase his price upon his own ; that such in- 
crease of the price upon the domestic article is a tax upon the 
domestic consumer extorted by law from one class for the ben- 
efit of another; that its practical effect is to make our protected 
producers dependent upon their legal power to collect a tax 
for their own profit, and not upon the intelligence, enterprise, 
and skill which competition with other countries would evoke 
and quicken. These views obtain support among those who 
believe their interests are injuriously affected by a protective 
tariff. 

On the other hand the protectionist rejects free trade as an 
impracticable theory and unsuited to American conditions. 
He urges that the protective system encourages capital, skill, 
and labor to embark in manufacturing the fabrics for which 
our fields, forests, and mines afford the raw materials ; that 
thus the avenues of industry are multiplied, capital finds in- 
vestment, skill is stimulated and rewarded, the resources of 
the country made available, the domestic markets enlarged 
and improved, and the self-dependence, wealth, and prosperity 
of the people increased. These general views also obtain wide 
acceptance. We cannot enter upon the mass of details which 
are employed to support or refute either contention. The im- 
partial reader of the enormous bulk of argumentation might 
well conclude that the success of the champion of either side 
depends in part upon the facts adduced, and in part upon the 
facts suppressed. The factors bearing upon the utilitarian phase 
of the argument are so many that it is not strange that a cen- 
tury of experience and discussion has not sufficed properly to 
adduce and correlate them all, and advance to an irrefragable 
demonstration. It is probably true that a protective tariff 
imposes a tax upon the consumer for the benefit of the pro- 
ducer. On the other hand it is probably true that the protec- 
tion of home industries results in a general benefit, in which 
the consumer participates. It is not easy to identify the par- 
ticulars or amount of the benefit, but the general proposition 
cannot be easily disproved, and the persuasion of its truth at- 
tains a sort of moral certainty. Assuming both propositions 
to be true, the practical question is, Which method will result 
in the greater gain or loss ? 



224 CONSTITUTIONAL HISTORY. 

Behind the question of mere utility lies the moral question 
whether the government has the right to permit the manu- 
facturer to take a specific sum from the consumer against his 
will, and leave him no other return or compensation than his 
participation with every other citizen in the general benefit 
resulting from home manufacturing? 

The higher wages of American labor affords the excuse or 
justification for protection to American manufactures. Such 
labor has always commanded a higher price than European 
labor, for the reason that the price of labor both here and 
there is regulated by the law of supply and demand, but here 
the supply and the price have been influenced by the propor- 
tion of agricultural returns to the capital and labor invested 
in agriculture. In a new country the carpenter, blacksmith, 
and other artisans, who must render their services in the 
locality where they are needed, receive a wage proportioned 
in some degree to the bounty of agricultural returns from the 
cheap lands. They share in the prosperity of the country. 
It would be impossible at the outset to obtain the necessary 
labor for other manufacturing operations unless the same rate 
of wages should be paid. But the foreign producer employs 
his labor at a decreased price. Hence, unless the government 
devises some method of compensation for the inequality in 
the price of labor, it is plain that the American must delay 
his competing manufacturing undertaking until the price of 
labor is the same in both countries. Of course the consumer 
says, government has no right to deprive him of the privilege 
of buying in the cheapest market, nor to create individual 
loss in order to promote the gain of other individuals and the 
general gain. 

We do not undertake to decide these questions, but only 
seek to make them intelligible. 

It will be long before the free trade system will be adopted. 
Our markets are great, and we feel that we have the right to 
exclude foreign wares from them if it appears to be our inter- 
est to do so. Experience shows that the competition among 
American producers tends to reduce prices to the lowest rea- 
sonable amount, often much below that of the imported arti- 
cle, with the tax added. The manifest tendency of the people 
is to reduce a protective tariff to the lowest adequate protec- 



FEDERAL TAXATION. 225 

tive rate, to confine it to those imports of which labor forms 
the larger part of the value, and to exempt from duties those 
raw materials for manufacturing which we do not produce. 

The system is liable to great abuse. If the correct theory- 
should be adopted, the utmost vigilance would be needed to 
guard against abuse in its application. 

It would be fortunate if the whole matter could be with- 
drawn from Congress, and committed to a tribunal as impar- 
tial and able as the Supreme Court of the United States, with 
power to alter and modify the tariff, as the evidence submitted 
by the government and every party interested might require. 

Closely connected with the tariff is the question of federal 
taxation. The states resort to direct taxation, the nation to 
indirect. In the states property is made the subject of taxa- 
tion ; the theory being that every one should be taxed in 
proportion to the amount of his property. In the nation 
every one pays a tax in proportion to the amount of his ulti- 
mate consumption of dutiable articles. Unless care is taken 
in laying the imposts, the man who has the most children 
pays the most tax. The tariff therefore ought to be as light 
as possible upon the food and clothing and other necessaries 
of the poor man, and more onerous upon the articles which 
the wealthy consume. In this way the national tax may be 
levied in great part upon those who ought to pay it. In a 
republic where universal suffrage has so great power, and 
may if exasperated make reprisals and repay in vengeance, 
it is folly for wealth to seek to escape from its just contri- 
bution to the support of the government even if it has the 
power. 

We may fairly hope that henceforth our history will prove 
to be monotonous. We have reached the era of great com- 
mercial and industrial enterprises. Whether we have one 
President or another, one party in power or another, is of 
little moment so long as our Constitution is paramount and 
wise laws prevail. Let us hope that the record will be that 
of a people advancing in that civilization which inspires men 
to treat one another fairly, and to help one another in all 
reasonable ways. 

15 



LECTUEE X. 

THE INFLUENCE OF THE SUPREME COURT UPON OUR CON- 
STITUTIONAL DEVELOPMENT AND GROWTH. 

It is impossible to comprehend the development and growth 
of our constitutional system without taking into consideration 
the position and influence of the Supreme Court of the United 
States. This body is the final expounder of the Constitution 
in all cases which can be presented in the form of a suit at 
law. The expounders of the Constitution hold an office un- 
der it of little less importance than that of its framers. The 
framers discharged their office and rested from their labors. 
The expounders are constant in their office and are seldom at 
rest. Judges die, but the Court is immortal. The Constitu- 
tion speaks as of the age in which it was written, more than a 
century ago. The Court expounds it in the language of its 
own age, holding fast to the old words and powers, but ex- 
panding them to keep pace with the expansion of our coun- 
try, our people, our enterprises, industries, and civilization. 
Great controversies arise over questions and conditions im- 
possible for the framers of the Constitution to have antici- 
pated. What would they have thought, if one had asked 
them the question whether a state law regulating the trans- 
mission or taxation of telegraphic messages between Kansas 
and Nevada would be unconstitutional, because encroaching 
upon the power of Congress to regulate commerce among the 
states? Plainly, a constitution made a century ago might 
well be expected to prove inadequate to the wants of the ever 
increasing population of the United States. That such is 
not the case is remarkable evidence of its wisdom, and also 
of the wisdom of its exposition. It will be instructive to 
glance, even hastily and imperfectly, at the history of the 
Court, and its function and influence in shaping our constitu- 
tional development and growth. 



THE SUPREME COURT. 227 

In the beginning, the judicial was apparently the least im- 
portant of the three departments of the government, and in 
the opinion of many has always remained so. But the Court 
has made our dual system of government possible, and in the 
end harmonious and valuable. It was inevitable when the 
functions of sovereignty were parcelled between two jurisdic- 
tions, and, in so far as they were reserved to the people, de- 
nied to either jurisdiction, that controversies and jealousies 
would arise ; that there would be conflicting interpretations 
of the Constitution, rival partisans of national and state su- 
premacy, encroachments by one jurisdiction upon the other, 
and sometimes open and undisguised contempt of rightful au- 
thority. 

The framers of the Constitution would have been justly 
subject to the reproach of devising a system fraught with the 
causes of its own destruction, if they had not also devised a 
tribunal to settle the contentions which the system was sure 
to generate. 

The Judiciary Department was intended to furnish such 
a tribunal. In the beginning, its opportunity and influence 
were slight ; its place in the government feeble and inconse- 
quent. Darkness and uncertainty enveloped its powers and 
jurisdiction, invited challenge, and promoted hesitancy. The 
Court had to await its opportunity, and then to ascertain its 
jurisdiction and the scope of its powers. The problem was 
whether it would ascertain aright ; whether it would clearly 
see, and clearly define, and clearly and rightly use its powers. 
It had not only to wait for the opportunity to develop and 
assert its own power and jurisdiction, but also to wait for the 
recognition of them by the people. It was overshadowed in 
the early years of the government by the immediate, active, 
and dominant influence of the other departments. It gave, 
during many years, but feeble promise of its ultimate influ- 
ence in shaping our constitutional growth. But it is plain 
now that we are largely indebted to the Court for our con- 
tinued existence as a nation, and for the harmony, stability, 
excellence, and success of our federal system. 

It is true that it has not had the command of armies and 
navies, it has not had the power of the purse ; it could not 



228 CONSTITUTIONAL HISTORY. 

make laws or repeal them. As has been well said : " It is a 
power which has no guards, palaces, or treasuries, no arms 
but truth and wisdom, and no splendor but its justice and 
the publicity of its judgments." The supremacy of the 
Court is the result of a natural growth, of a constant accumu- 
lation of influence, with little loss and no decay. True con- 
stitutional principles, when once correctly ascertained and in- 
terpreted, remain forever. We have not only the wisdom and 
learning of the magistrates who sit in the judgment seat to- 
day, but we have the vast store of the decisions of their pred- 
ecessors. We are, no less than the Court itself, the heirs of 
the wisdom embodied in the recorded opinions of those who 
have gone before. The Court has all the influence due to 
itself, and all that is due to the wisdom stored up from the 
beginning. No other department has so rich an inheritance. 
Decisions and opinions, which, in the day of their delivery, 
may not have received the respect due to their merit, in the 
end are sure to receive it. Truth and wisdom are the more 
clearly perceived and recognized, after time has dissipated 
the mists of passion and prejudice which at first obscured 
them. The affairs of administration and legislation, however 
imposing and commanding in their day, are often as ephem- 
eral as the day itself. The influence of the Court bides its 
time ; the later generation quietly accepts the wise rule 
which the prejudice of the earlier repudiated. 

The Court is happily constituted. A body of learned, able, 
and virtuous men are selected for judges. They realize their 
duties and responsibilities, and rise, if need be, to the occa- 
sion. It is their life-work. The traditions and habits of their 
order become their guides and guards. If they are fit for 
their place, they have no ambition for other places. They 
constitute the nation's official reserve of dispassionate wisdom 
and virtue, for use in seasons of passionate heat and contro- 
versy. 

The influence of the Court upon the other departments of 
the government, and upon the nation, states, and people, is 
usually only indirect, but that fact, strange as it may seem, 
has rendered its influence more commanding. Its direct 
power and influence are only exercised upon the persons and 



INDIRECT INFLUENCE OF THE SUPREME COURT. 229 

property affected by the cases before it. The Court sits to 
decide cases and controversies between litigants, that is, law- 
suits. The Court declares the law for the sole purpose of ap- 
plying it to the case before it, in order to decide it correctly. 
Strictly speaking, when the case is decided, nothing more is 
decided or settled than the suit between the parties to it ; as, 
for example, that the plaintiff can or cannot recover a certain 
sum of money from the defendant. No parties are before the 
Court besides the litigants, and no other parties are directly 
bound by the judgment or decision. Such being the case, it 
would seem that the decision could have but little influence 
upon any other persons or matters. This is so with respect 
to the greater part of the cases and controversies brought be- 
fore the Court. But we need to look further. The Consti- 
tution, Art. 3, sec. 2, declares that the judicial power of the 
United States " shall extend to all cases in law and equity 
arising under this Constitution, the laws of the United States, 
and treaties made or which shall be made under their author- 
ity," etc. Now, although it may be true that the decision 
of a case is only the decision of the dispute or contention be- 
tween the parties, yet in order to decide it, it may be neces- 
sary to determine what a certain clause or expression in the 
Constitution means. If it means what either of the parties 
contends, that party will probably win his case. 

Although the Court only interprets the clause or expression 
of the Constitution in order to determine which party shall 
prevail, the interpretation declared by the Court is not made 
without full examination and deliberation, nor until after 
argument upon both sides has been heard. These arguments 
are usually made with all the ability and learning which the 
private interests at stake can stimulate and command. The 
interpretation of the Constitution, when thus made by the 
Court, is probably a true one. When such true interpretation 
is once made and declared, there is no need of making it other- 
wise or different in any other case. Indeed, there can rarely 
be any excuse for unsettling it. The practical result is, and 
as it inevitably must be among sensible people, that the con- 
stitutional interpretation once deliberately made and adjudged 
by the Court remains adjudged and settled. If any case sub 



230 CONSTITUTIONAL HISTORY. 

sequently comes before the Court involving the same question, 
the decision already made becomes the rule of decision for the 
later case. The decisions and opinions of the Court in the 
cases decided by it are published in its volumes of reports, 
and thus not only become known, but are permanently pre- 
served for future reference and guidance. If the question 
already decided by the Court again arises between individu- 
als, their counsel, if learned in the law, will advise them to 
respect it and avoid litigation. If, notwithstanding such ad- 
vice, the question is brought before the Court, it will in all 
probability repeat its former decision. 

If the same question comes before the Congress of the 
United States, or before any of the executive departments, 
both Congress and the departments will, if they be prudent, 
respect and conform to the decision. Why should they do 
this if independent and coordinate departments of the gov- 
ernment ? Because, if they enact a law, or make an order, 
in violation of the Constitution as the Supreme Court has 
interpreted it, they invite the citizen to hazard and lose his 
liberty or property upon their action. Thus, if the Supreme 
Court decide that a certain order of the President is no de- 
fence to a private citizen or to a public officer, acting under 
it, for the reason that the President has no constitutional 
power or authority to make it, it follows that a prudent re- 
gard for the rights of the citizen or officer will prevent the 
President from repeating the like order. The President will 
not require the citizen or officer to incur the risk of litigation 
in which he is sure to be defeated. In like manner, if the 
Supreme Court decide that an act of Congress, or of a state 
legislature, is unconstitutional, neither Congress nor the state 
legislature would reenact such a law ; for thereby they would 
lead other persons into a litigation to their injury. In addi- 
tion to these considerations, the respect accorded to the deci- 
sions of the highest court in the nation is very great, and is 
practically controlling. Thus it is that in many cases and 
questions the judiciary has attained a superiority over the 
other departments of the government and also of the states ; 
not in exact strictness, but as the consequential result of the 
decisions of the court in cases between individuals, and also 



SUPERIORITY DISCLAIMED 231 

because of the prudence of the departments, and of the states. 
This result is perfectly natural. It has thus come to pass 
that the Court has acquired enormous influence — controlling 
where it has not assumed control, and obeyed where it has 
issued no order. 

This almost inevitable consequence has not been allowed 
to obtain without repeated and vigorous protest, — a protest 
which is constantly renewed, but which will be made in vain 
so long as the Court rules departments and states more by its 
influence than by its power. 

President Jefferson was greatly annoyed because the Su- 
preme Court in Marbury v. Madison, a case to which refer- 
ence will be made hereafter, reviewed an act of Congress, and 
the action of the President under it. He characterized the 
decision as " an irrelevant dissertation of the Chief Justice 
and bad law." He at another time declared : — 

" That each department of the government is truly independent of 
the others, and has an equal right to decide for itself what is the 
meaning of the Constitution and the laws submitted to its action." 

This proposition is theoretically correct. The Court, Dodge 
v. Woolsey, 1 itself declares : — 

"The departments of the government are legislative, executive, 
and judicial. They are coordinate in degree to the extent of the 
powers delegated to each of them. Each in the exercise of its power 
is independent of the others, but all rightfully done by either is bind- 
ing upon the others." 

In another case, Mississippi v, Andrew Johnson, 2 applica- 
tion was made to file a bill against the President to enjoin him 
from enforcing the reconstruction acts in the State of Mis- 
sissippi, upon the grounds that those acts practically super- 
seded the government of the state and subjected it to mili- 
tary authority under the President. The Court denied the 
application, and said that Congress is the legislative depart- 
ment of the government, " the President is the executive 
department. Neither can be restrained in its action by the 
judicial department ; though the acts of both, when per- 
formed, are, in proper cases, subject to its cognizance." 
i 18 How. 347. 2 4 Wallace, 500. 



232 CONSTITUTIONAL HISTORY. 

The distinction is thus clearly intimated between the power 
of the Court to interfere with the action of the other depart- 
ments and its power to determine upon the legal effect of 
that action, upon the rights of others when performed. We 
can readily believe that neither department would repeat the 
action, after the Court had once decided that because of its 
unconstitutionality it was void and conferred no rights, and 
secured no protection. 

President Jackson vigorously asserted the same doctrine 
which President Jefferson had announced. The Supreme 
Court had decided that the charter of the Bank of the United 
States was constitutional. The charter was about expiring, 
and Congress passed a bill renewing and extending it. Presi- 
dent Jackson said in his veto message : — 

" Each public officer who takes an oath to support the Constitution 
swears that he will support it as he understands it, and not as it is 
understood by others. It is as much the duty of the House of Repre- 
sentatives, of the Senate, and of the President, to decide upon the 
constitutionality of any bill or resolution which may be presented 
to them for passage or approval, as it is of the supreme judges when 
it may be brought before them for judicial decision. The decision of 
the judges has no more authority over Congress than the opinion of 
Congress has over the judges, and on that point the President is in- 
dependent of both. The authority of the Supreme Court must not, 
therefore, be permitted to control the Congress or the executive when 
acting in their legislative capacities." 

No valid technical exception can be taken to this reason- 
ing, when applied by the President or by Congress, to justify 
a veto of a bill or a vote against it. A rejected bill can never 
come before the Supreme Court for its decision, and therefore 
no officer or individual can ever have his rights or property 
dependent upon the construction which the Supreme Court 
may entertain respecting such a bill. President Jackson ap- 
plied his doctrine in support of a veto, and therefore kept 
strictly within his constitutional right. But suppose the 
Supreme Court had held that the old charter of the Bank 
was unconstitutional, and the President and Congress had, 
notwithstanding the decision, granted the new charter, and 
the public had disregarded the Supreme Court and embarked 



STABILITY OF THE COURT. 233 

their money in the new bank. It is easy to see that im- 
mense losses would have occurred, and that the President and 
Congress would have been justly blamable. 

But the true reason why the decisions of the Supreme 
Court should be respected by the President and by Congress 
is that its judgment, made in the cases brought before it, is 
the highest authoritative expression of the national will and 
understanding respecting the interpretation of the Constitu- 
tion and the laws which we are able to obtain. The judg- 
ment of the highest court declaring the meaning of the law is 
intended by our form of government to be the best authority 
obtainable respecting that meaning. That is so, in the very 
nature of the case. Our system proceeds upon the theory 
that the judges are learned in the law, that they are its im- 
partial interpreters ; that the executive, the Congress, the 
people, are less learned, less reliable, more influenced by pas- 
sion, prejudice, and interest. The welfare of the community 
requires that we shall have the best obtainable interpretation 
of the Constitution and laws, and we have therefore provided 
the best tribunal we could devise to secure it to us ; and hence 
when this tribunal gives us what it was appointed to give, it 
is imprudent for President, Congress, or people to substitute 
for it their interpretation, which may be based upon interest, 
partisanship, or prejudice. 

Moreover, the meaning of the Constitution and laws should 
be fixed and stable. It is the peculiar excellence of the courts 
that they are stability itself, as compared with the other de- 
partments. Truth is required ; it is the duty of the courts to 
ascertain and declare it, if necessary to their judgments. The 
judges hold office for life; thus all possible stability which 
mortality permits is given to the personality of the Court. 
The other departments change with the changes in the public 
temper and interest. Safely so, so long as we have a govern- 
ment of laws whose meaning and force are not dependent 
upon these changes. 

Grant that the Court is occasionally in error; two remedies 
exist: one an amendment to the Constitution, — a remedy ap- 
plied in the Eleventh, Thirteenth, Fourteenth, and Ffteenth 
amendments to the Constitution ; the other, a reconsideration 



234 CONSTITUTIONAL HISTORY. 

of its decision by the Court itself, — a reconsideration which, 
if permitted, will be made upon solemn argument, — an argu- 
ment which will be presented with all the ability and force 
which the keenest and strongest minds, quickened and 
strengthened by every consideration of interest, feeling, and 
ambition, can bring to the work. 

Mr. Madison was originally of opinion that the Congress 
had no power to charter the Bank of the United States. 
Nevertheless, in 1817, as President, he approved the bill for 
its re-charter. He gave as the reason for his action that he 
felt it to be his duty to yield his own opinion to the vast and 
uniform weight of congressional and national opinion for 
twenty years. 

He wrote in 1832 : — 

" The act originally establishing a bank had undergone ample dis- 
cussions in its passage through the several branches of the govern- 
ment. It had been carried into execution throughout a period of 
twenty years, with annual legislative recognitions, and with the entire 
acquiescence of all the local authorities, as well as of the nation at 
large. A veto from the executive under these circumstances would 
have been a defiance of all the obligations derived from a course of 
precedents amounting to the requisite evidence of the national judg- 
ment and intention." 

The executive and legislative departments may, without 
technical impropriety, follow their own judgment with respect 
to the constitutionality of their action, notwithstanding the 
contrary opinion of the Court previously expressed in a simi- 
lar case, whenever their action cannot result in a litigation to 
be decided by the Court. It is improbable that such action 
by the departments will be of frequent occurrence. 

President Lincoln, in his first inaugural address, referring 
to the then recent Dred Scott decision, said: — 

"I do not forget the position, assumed by some, that constitutional 
questions are to be decided by the Supreme Court, nor do I deny 
that such decisions must be binding upon the parties to that suit, 
while they are also entitled to very high respect and consideration in 
all parallel cases by all departments of the government. . . . But if 
the policy of the government, upon the vital questions affecting the 
whole people, is to be irrevocably fixed by the decisions of the Su- 



MR. MADISON'S OPINION. 235 

preme Court the moment they are made, as in ordinary cases be- 
tween parties in personal actions, the people will have ceased to be 
their own masters, having to that extent resigned their government 
into the hands of that eminent tribunal." 

Now the Dred Scott decision was at variance with the 
sentiment of the anti-slavery portion of our people, and in 
due time, when they had the power, they reversed it by 
amendments to the Constitution. 

In the sense that an amendment to the Constitution can 
reverse the decision of the Court upon a question of constitu- 
tional construction, President Lincoln was speaking the lan- 
guage of prophecy, and within reasonable limits. But so long 
as the Court adheres to the construction pronounced, it will be 
useless to exclaim against it, with respect to action which will 
result in bringing litigants before the Court. The instances 
cited are illustrative of the opposition which the Court has 
overcome by its constantly growing influence, upon its way 
from comparative insignificance to recognized supremacy. 

Mr. Madison in 1834, perhaps without fully realizing that 
which our subsequent experience has made clearer, the danger 
of anarchy which must result if the decisions of the Supreme 
Court should not be respected by the other departments of the 
government, wrote : — 

" Without losing sight, therefore, of the coordinate relations of the 
three departments to each other, it may be expected that the judicial 
bench, when happily filled, will most engage the respect and reliance 
of the public as the surest expositor of the Constitution, as well of 
questions within its cognizance concerning the boundaries between 
those of the several departments of the government, as in those be- 
tween the Union and its members." 

While the Court will not in any way attempt to control ex- 
ecutive action, that is, action which involves judgment and 
discretion, but will limit its judgments to declaring the validity 
of acts after they have been performed, and rights are asserted 
under them ; still the Court will, after the judgment and dis- 
cretion of the executive officer have been exercised in favor of 
an individual, direct the performance by the executive officer 
of the purely ministerial acts necessary to place the individual 
in possession of his rights, or of the title to them. Thus, when 



236 CONSTITUTIONAL HISTORY. 

Mr. Schurz was Secretary of the Interior, a patent for lands 
had been signed by the President, sealed and recorded, and 
was ready for delivery. Mr. Schurz caused delivery to be 
withheld, but the Court compelled delivery upon the ground 
that the proper departments had exercised their judgment and 
discretion and had awarded and executed the patent, and 
thereupon the claimant was entitled to it ; and as nothing re- 
mained to be done but the mere act of handing him the paper, 
it was proper for the Court to direct that act to be performed. 1 
This exception to the general rule was adopted after the ma- 
turest consideration, and serves to illustrate the careful ob- 
servation of the rule itself. 

The Supreme Court early recognized the separation of the 
judicial from the other departments of the government by its 
refusal to perform any other than judicial labor. In 1792, 
Congress passed an act requiring the circuit courts to examine 
into claims for pensions and certify to the Secretary of War 
such as they should find to be valid, together with the amount 
to be allowed. The courts refused to perform this function 
because it was not a judicial one in the sense of the Constitu- 
tion. The judicial power there mentioned is the power to de- 
termine cases and controversies in the nature of litigations. 
Several of the judges, however, consented to act, out of court, 
as commissioners, from sympathy with the meritorious charac- 
ter of the claims. But as now understood the judges could 
not act as commissioners, for the reason that such an office is 
distinct from the judicial office, and to exist must be specially 
created. 2 

It follows from the nature of the judicial office that the 
Court has no power to enforce its own judgments. Its duty is 
to pronounce judgment in the cases brought before it. How 
and in what manner the judgment shall be executed, it is for 
Congress by law to provide. The theory is that Congress 
will provide amply for the fullest execution of the decrees of 
the Court, and that behind the officers charged with this exe- 
cution stands the whole physical force of the nation. If obe- 
dience is withheld or delayed, the Executive Department will 

1 United States v. Schurz, 102 U. S. Rep. 378. 

2 United States v. Ferreira, 13 How. 373. 



INSTANCES OF DISRESPECT. 237 

summon as much of this force as may be necessary. The fact 
that this is so ordinarily makes the employment of force un- 
necessary. 

Theoretically, the Court is absolutely powerless. Practi- 
cally, the whole force of the nation is at its bidding. Presi- 
dent Jackson, however, refused to enforce its judgment in the 
case of Worcester against the State of Georgia. 1 In that case, 
the State of Georgia had made a law, subjecting to punishment 
all white persons residing within the limits of the Cherokee 
Nation who had not obtained a license from the state to reside 
there, and also taken an oath of allegiance to the state. This 
law authorized the arrest of such persons within the limits of 
the Cherokee Nation, their forcible removal therefrom, and 
their trial for the offence by the courts of the state. 

Worcester was a native of Vermont, and in 1831 he was 
sent, under the permission of President Adams, as a mission- 
ary to the Cherokee Nation by the American Board of Com- 
missioners for Foreign Missions. He there engaged as a 
preacher and teacher among the Indians. He obtained no 
license from the state. The State of Georgia claimed that the 
territory occupied by the Cherokee Nation was within her 
jurisdiction. It was within her geographical limits. But the 
United States had made a treaty with the nation, and the 
treaty recognized the nation as a distinct, separate political 
community, authorized to govern within its own territory, 
wholly exempt from the control of the State of Georgia. The 
State of Georgia caused Worcester's arrest within the limits of 
the nation, and he was tried in the state court for a violation 
of the state law, and was sentenced to imprisonment for four 
years in the state penitentiary. The case was brought before 
the Supreme Court of the United States, and that Court held 
that the treaty was the supreme law, and reversed the convic- 
tion. Worcester ought thereupon to have been set at liberty. 
But he was not. This was in 1833. President Jackson took 
sides with the state. He is said to have remarked, " John 
Marshall has made his decision, now let him execute it." 
Worcester remained in prison until the governor of the state, 
conceiving that he had won the victory, pardoned him. The 

1 6 Peters, 515. 



238 CONSTITUTIONAL HISTORY. 

fact was, the state was covetous of the lands occupied by the 
Cherokees, and the state sovereignty doctrine of that day af- 
forded a basis upon which she waged and won her battle 
against the United States. The final result was that the 
Cherokee Indians were persuaded by the United States to 
leave the State of Georgia, and take up their abode in the 
Indian Territory upon the eastern slope of the Rocky Moun- 
tains. The persuasion was reinforced by money and the pres- 
ence of several thousand troops under the command of Gen- 
eral Winfield Scott. 

It was obviously the duty of President Jackson to give his 
support to the judgment of the Supreme Court, under his con- 
stitutional obligation to " take care that the laws be faithfully 
executed." But how far he should risk armed collision by 
the United States with the State of Georgia in enforcing the 
judgment was a prudential question, in respect to which it 
was his right and duty to exercise his own judgment. 

In another case in that state a man was convicted by the 
state court of murder, alleged to have been committed in the 
territory of the Creek Indians. The United States had a 
treaty with this tribe also, and by this treaty the tribe, and 
not the state, had jurisdiction to try the murderer. After 
the man was convicted, the Supreme Court issued its writ in 
order that the case might be reviewed in that Court. This 
action by the Supreme Court was treated by the State of 
Georgia as a great and utterly unsupportable piece of arro- 
gance and pretension, which a proper sense of her indepen- 
dence and sovereignty required her to resent and resist. When 
the writ from the Supreme Court was served, commanding 
the state court in the usual form to make return to the for- 
mer court of its judgment, and of the proceedings which led 
to it, the excitement in the state became very great, and 
found expression in extravagant language. The legislature of 
Georgia adopted the following resolution : — 

" Resolved, That his excellency, the governor, be and he is hereby 
authorized and required, with all the force and means placed at his 
command by the Constitution and laws of this state, to resist and 
repel any and every invasion, from whatever quarter, upon the ad- 
ministration of the criminal laws of this state." 



DISOBEDIENCE IN WISCONSIN. 239 

The state court refused to make the return. The Supreme 
Court had no power to enforce its writ. The President of the 
United States did not choose to enforce it, and the prisoner 
was hung. 

As late as 1855, in the State of Wisconsin, the authority of 
the United States Supreme Court was practically and sue. 
cessfully nullified. The case arose under the Fugitive Slave 
Law of 1850. One Booth was charged before the United 
States commissioner with having, in March, 1854, aided and 
abetted at Milwaukee the escape of a fugitive slave from the 
deputy marshal. Booth was held to bail to appear before 
the District Court of the United States for Wisconsin, and 
answer the charge at the following July term. But before the 
District Court met, Booth's bondsmen, probably to aid his 
escape, surrendered him again to the marshal, who, upon the 
order of the United States commissioner, lodged him in jail. 
Booth then applied to a state judge for a writ of habeas cor- 
pus, which was issued, and upon a hearing this judge dis- 
charged him, holding that the Fugitive Slave Law was uncon- 
stitutional. This decision was brought by appeal before the 
state court and affirmed. From this decision an appeal was 
in due form taken to the United States Supreme Court. But 
before the case was reached for argument in the latter court, 
Booth was indicted in the District Court of the United States 
for aiding and abetting the escape of the slave from the cus- 
tody of the marshal. He was tried, found guilty, and was 
sentenced to pay a fine of $1,000, and be confined in jail one 
month, and until the fine should be paid. Booth, now be- 
ing in jail, applied to the supreme court of the state for a 
writ of habeas corpus, and the state court granted the writ, 
and, notwithstanding his conviction and sentence in the Dis- 
trict Court of the United States, he was discharged, the state 
court again holding the Fugitive Slave Law to be unconstitu- 
tional. The Attorney General of the United States now ap- 
plied to the Chief Justice of the United States, and obtained a 
writ of error commanding the state court to make return of 
its judgments and proceedings, to the end that its decision 
and judgment upon the habeas corpus might be reviewed. 
But the state court, following the Georgia precedent of a 



240 CONSTITUTIONAL HISTORY. 

quarter of a century before, refused to obey the writ, and 
directed its clerk to disregard it, and it was disregarded. The 
Attorney General, thereupon, procured copies of the record 
and proceedings and brought them into the United States 
Supreme Court, and that court, as in the case already referred 
to of Worcester against the State of Georgia, did review and 
reverse the decision and judgment of the state court. Booth, 
however, never appeared in the United States court, nor sub- 
mitted to its authority, and consequently never was punished 
according to the sentence of the District Court. 1 No doubt, 
the action of the Wisconsin court was just as revolutionary as 
the similar action in the Georgia cases. In both states popu- 
lar opinion defied the supreme law. 

In 1861, at the outbreak of the rebellion, one Merryman 
was arrested by military authority in Maryland for supposed 
treasonable practices. Chief Justice Taney issued a writ of 
habeas corpus to inquire into the cause of his imprisonment. 
President Lincoln directed the officer to refuse obedience to 
the writ, and declared the writ suspended in his case. The 
Constitution provides that " the privilege of the writ of ha- 
beas corpus shall not be suspended, except when, in cases of 
rebellion or invasion, the public safety may require it." (Art. 
1, sec. 9.) Congress was not then in session. The Chief 
Justice held that Congress only could direct the suspension of 
the privilege of the writ. But the President held otherwise, 
and as he had the power, he refused to yield obedience to the 
order of the Chief Justice. Congress subsequently sustained 
the President. 

A becoming respect for the authority of the judiciary re- 
quired the President to yield to the authority of the Court in 
a case in which it clearly had jurisdiction. But laws are silent 
in war and great public danger. The wise ruler who is then 
charged with the public safety must, if Congress is not in ses- 
sion, seize with quick hand the executive constitutional means 
to avert war and restore peace. 

These refractory cases, interesting as they are, are excep- 
tions. They serve to illustrate the fact that the judicial 
powes and influence, in the formative stages of our constitu- 
1 Ableman v. Booth, 21 How. 506. 



NARROW CONSTITUTIONAL GUARANTEE. 241 

tional growth, did not always command complete respect, or 
were thrust aside under pressure of popular opposition. 

Mr. Hamilton, in the seventy-eighth number of " The Fed- 
eralist," remarked : — 

" The judiciary from the nature of its functions will always be the 
least dangerous to the political rights of the Constitution, because it 
will be least in a capacity to annoy or injure them. The executive 
not only dispenses the honors, but holds the sword of the community ; 
the legislature not only commands the purse, but prescribes the rules 
by which the duties and rights of every citizen are to be regulated ; 
the judiciary, on the contrary, has no influence over the sword or the 
purse ; no direction either of the strength or of the wealth of the 
society, and can take no active resolution whatever. It may be said 
to have neither force nor will, but merely judgment, and must ulti- 
mately depend upon the aid of the executive arm for the efficacious 
exercise even of this faculty." 

He further remarked : — 

il The judiciary is beyond question the weakest of the three de- 
partments of power ; it can never attack with success either of the 
other two, and all possible care is requisite to enable it to defend it- 
self against their attacks." 

Under our happy experience the influence of the Supreme 
Court has proved to be really greater than the power actually 
conferred upon it ; an influence which Mr. Hamilton could 
not foresee or accurately estimate, but which in its practical 
results has proved as great as if it had been expressly pro- 
vided for by the Constitution itself. Mr. Hamilton was quite 
right in his remark that " all possible care is requisite to 
enable it to defend itself against their attacks." 

Indeed, the Supreme Court has a very narrow constitu- 
tional guarantee of position and jurisdiction. The third arti- 
cle of the Constitution provides for its existence and limits 
its jurisdiction. The first section provides that " the judicial 
power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from 
time to time ordain and establish." Thus the Constitution 
enjoins upon Congress to ordain and establish one Supreme 
Court. Congress may establish it as it thinks proper. It 
may add to or take away from the number of its judges. This 

16 



242 CONSTITUTIONAL HISTORY. 

power is undoubtedly large enough to enable Congress greatly 
to impair, if not substantially to destroy, this Court. Congress 
may also tamper with and practically destroy its most impor- 
tant jurisdiction. 

The second section provides that " the judicial power shall 
extend to all cases, in law and equity, arising under this Con- 
stitution, the laws of the United States, and treaties made, or 
which shall be made, under their authority," also to cases of 
admiralty and maritime jurisdiction ; but with respect to these 
cases it is provided that the Supreme Court shall have appel- 
late, not original jurisdiction, both as to law and fact, " with 
such exceptions, and under such regulations, as the Congress 
shall make." The litigation which comes before the Court, 
involving constitutional questions, arises in " cases under this 
Constitution." Since Congress has the constitutional power 
to make such exceptions to the appellate jurisdiction of the 
Court as it thinks proper, it follows that the great jurisdic- 
tion specified in the Constitution is by the Constitution itself 
subjected to congressional exceptions and regulations, and 
therefore the Court is largely at the mercy of Congress. 

In a rapid sketch of the history of the Court, we shall see 
that Congress has, in a few instances, tampered both with its 
organization and its jurisdiction. Fortunately, the instances 
are rare. The efficiency of its organization and the scope of 
its jurisdiction have in the main been carefully regulated and 
preserved. 

On the 24th day of September, 1789, the act organizing 
the Supreme Court was passed. The Court was constituted 
with a Chief Justice and five associates. John Jay was ap- 
pointed the first Chief Justice by Washington. Webster 
said of him that when the ermine fell upon his shoulders, it 
touched a being as spotless as itself. The Court first con- 
vened in February, 1790, in New York. It does not appear 
from the reports that any case then came before it. Jay re- 
mained Chief Justice until 1795, when he resigned to become 
governor of the State of New York. A chief justice in our 
day would hardly do this. His judicial duties were so few 
that he found time, in 1794, to accept the mission to Eng- 
land to negotiate the treaty so famous in history as " Jay's 



CHIEF JUSTICES. 243 

Treaty." John Rutledge of South Carolina was appointed 
to succeed Jay, but he was so pronounced in his opposition to 
the treaty, and so bitter in his denunciation of Jay himself, 
that the federal Senate refused to confirm him. William 
Gushing of Massachusetts, one of the associate justices, was 
then nominated by Washington, and was promptly confirmed ; 
but he preferred to remain associate justice, and Oliver Ells- 
worth of Connecticut was made Chief Justice. He held the 
office until 1801, when John Marshall of Virginia was ap- 
pointed by President Adams. Marshall held the office thirty- 
four years. He was known at the time of his appointment 
as an ardent Federalist. In our time he is known as " the 
great Chief Justice." Roger B. Taney was the next incum- 
bent. He was appointed by President Jackson. His polit- 
ical enemies styled him a renegade Federalist, and said that 
his appointment was his reward for his obsequious obedience, 
while Secretary of the Treasury, to President Jackson. But 
Taney, despite the Dred Scott decision, was an honest man 
and a great judge. His opinions are models of lucid and 
orderly discussion, and are of admirable literary form. He 
held the office for twenty-eight years, and upon his death in 
1864, President Lincoln appointed Salmon P. Chase, of Ohio. 
Chief Justice Chase died in 1874. President Grant then ap- 
pointed Morrison R. Waite of Ohio. He died in 1888. Mel- 
ville W. Fuller, of Illinois is the present incumbent, his ap- 
pointment having been made by President Cleveland. 

Of the associate justices there is but little to be said. In- 
deed, what more need be said of a body of learned and virtu- 
ous men, sworn " to administer justice without respect to per- 
sons, and do equal right to the poor and the rich," than that 
they live and labor in the earnest and faithful discharge of 
their solemn obligations ? 

In 1807 an associate judge was added by Congress; two 
more were added in 1837, and one in 1863. They were 
added to enable the Court to perform the work of the circuits, 
which increased with the growth of the country. 

In 1865 Judge Catron died. Andrew Johnson was Presi- 
dent. Congress had entered upon that long struggle with the 
President with respect to the reconstruction of the seceded 



244 CONSTITUTIONAL HISTORY. 

states, which has been previously mentioned. Congress 
thought proper to govern these states by military commission 
until they should conform to certain prescribed requirements, 
and adopt the Fourteenth Amendment proposed to the Con- 
stitution. The President vetoed the acts of Congress, and 
Congress passed them over his veto. It was probable that in 
some form the constitutionality of these acts of Congress 
would come before the Court for decision, and Congress did 
not wish the President to fill Judge Catron's place. Accord- 
ingly a law was passed, over the President's veto, forbidding 
the filling of any vacancy until the number of associate judges 
should be reduced to six ; the whole number of associates hav- 
ing previously been nine. This was undoubtedly a violent 
exercise of partisan power. 

Judge Wayne died in 1867. . The Court, now constituted 
of the chief justice and seven associates, was called upon to 
decide whether the act of Congress making the United States 
notes, commonly called "greenbacks," a legal tender was 
constitutional so far as it applied to contracts before its pas- 
sage. The Court in 1869, by a vote of five to three, decided 
that it was unconstitutional. By an act of Congress of April, 
1869, General Grant having become President, the' appoint- 
ment of an additional justice was authorized. Judge Grier 
was one of the majority, and he resigned January 31, 1870, 
and soon after died. Judge Strong, who on the bench of the 
Supreme Court of Pennsylvania had decided in favor of the 
constitutionality of the legal tender act, was appointed by 
President Grant to fill the vacancy. Apparently the Court 
would now be equally divided upon the question. Judge 
Bradley was then appointed. At the time of the appoint- 
ment of Judges Strong and Bradley there were two cases 
upon the Supreme Court docket involving the same question. 
Ordinarily the decision in the prior case would afford the rule 
for the decision of these. But Judge Bradley had as coun- 
sel ably contended for the position that the legal tender acts 
were constitutional. These cases were argued, and, contrary 
to the former decision, the law was declared constitutional by 
the majority of the Court. 

When Andrew Johnson was President Congress passed an 



EXPOSED TO CONGRESSIONAL ATTACK. 245 

act over his veto providing that officers appointed by the 
President, by and with the advice and consent of the Senate, 
could only be removed by the like advice and consent. This 
was a congressional construction of the power of removal at 
variance with the practical construction which had obtained 
from the time of Washington's first administration. The 
President, claiming this act to be unconstitutional, removed 
Mr. Stanton, or went through the form of removing him, from 
the office of Secretary of War. For this act he was im- 
peached by the House of Representatives, and upon trial 
escaped conviction by a single vote. Meantime Mr. Stanton 
continued to act as Secretary of War. It was probable that 
the validity of his acts as secretary would come before the 
Supreme Court, at the suit of parties affected by them, and 
thus his title to the office after the attempted removal become 
the subject of decision by the Court. To obviate any em- 
barrassment from this source, Congress passed an act depriv- 
ing the Court of jurisdiction. 

These instances will suffice to show that under the consti- 
tutional power of Congress over the organization and juris- 
diction of the Supreme Court, the physical power exists in 
Congress to reduce the Court much below the high place it 
has occupied so long in the government. 

It is possible, under the pressure of popular prejudice or 
exasperation, that this result may some time be accomplished ; 
and regrets have been expressed that the organization and 
jurisdiction of the Court are exposed to congressional attack 
and diminution. The fact is reassuring, that a century of 
experience, often amidst the fiercest partisan strife, and bit- 
ter disappointment and denunciation, has only increased the 
public confidence. We shall hereafter recount some of the 
unsuccessful attempts to deprive it of its most useful juris- 
diction. 

Fears also have been expressed that the Court may by con- 
struction so amplify its jurisdiction as to render it destructive 
of the reserved rights of the states. Despite all that has been 
said upon this subject, the truth is that the Court is really the 
bulwark and defender of those rights, as its decisions upon 
the effect of the recent constitutional amendments attest. It 



246 CONSTITUTIONAL HISTORY. 

will be presently shown that the Court has been more careful 
to preserve to the states their proper power to make and 
administer their own laws, than to give to these amendments 
the scope desired by their framers. 

The business of the Court has kept pace with the growth of 
the country. In 1803 the whole number of cases on its docket 
was fifty-one. In 1819 there were one hundred and thirty- 
one. In 1860 there were three hundred and ten. In 1870 
six hundred and thirty-six. In 1880, twelve hundred and 
two. In 1886, thirteen hundred and ninety-six. The cases 
are accumulating faster than the Court can dispose of them. 
As by the Constitution there can be but one Supreme Court, 
the remedy would seem to be in dividing the Court into two 
sections, assigning to one questions under the national Consti- 
tution and laws, and to the other questions upon state laws 
only. If Congress would never attempt to pass the line of 
national power, and if the states would never attempt to reg- 
ulate commerce, or impair the obligation of contracts, the 
work of the Court would be materially reduced. 

The power of the Court, if necessary for the decision of the 
case before it, to declare a law, either of the nation or of the 
state void, because unconstitutional, was practically without 
precedent in any judicial history. A few cases had arisen in 
the state courts, under the state constitutions adopted since 
1775, in which the point had been raised and sustained that 
certain laws were void because unconstitutional. But it was 
a long time before the existence and effect of this new power 
came to be fully understood. It was perceived that the Con- 
stitution of the United States prohibited certain legislation, 
both to the states and to the United States, and that this 
prohibition established a rule for the guidance of the several 
legislatures in respect to the matters prohibited to them 
respectively. With respect to the states, it was also per- 
ceived that the Constitution of the United States, and the 
laws of the United States made in pursuance thereof, were 
the supreme law of the land, and that the judges in every 
state were bound thereby, notwithstanding the state constitu- 
tion or law might contain provisions to the contrary (Art. 4). 
But the lawyers and judges were not accustomed to the meth- 



NOVELTY OF THE JUDICIARY POWER. 247 

ods of reasoning which should, from these propositions, deduce 
the result that it would be necessary for the Court to declare 
the state law void when in conflict with the federal Constitu- 
tion. And they were scarcely ready to admit the proposition 
that if the state court sustained the state law in preference to 
the Constitution of the United States, or in preference to the 
statutes of the United States authorized by the Constitution, it 
was competent for the Supreme Court of the United States to 
reverse the judgment of the state court, and declare the state 
law void because in conflict with the federal Constitution. 

Still less were they prepared to admit that the courts could 
declare a law of the United States void because not within 
the powers given by the Constitution to Congress. Our law- 
yers had been trained under the unwritten constitution of 
England, and knew that the power of Parliament was su- 
preme in all legislative matters. It is true there were cer- 
tain fundamental rights and privileges of the subject, guar- 
anteed by ancient charters of the king and the resolutions of 
Parliament, and reiterated by repeated judgments of the 
courts ; upon these both lawyers and people reposed with 
entire confidence ; but the power was not in terms denied to 
Parliament to invade them. Indeed it would not comport 
with the Constitution of that kingdom to deny any law-mak- 
ing power to the legislative omnipotence of Parliament ; and 
hence no court could set aside its laws. The universal senti- 
ment that these rights and privileges were the birthright of 
the subject, and superior to the touch or invasion of power, 
generally sufficed to make them so. Perhaps no written con- 
stitution can add force to so universal a sentiment. The 
fundamental principles which are everywhere respected, and 
everywhere self-operating, have little need of courts to correct 
their violation by Parliament. It is not improbable, therefore, 
that at the time of the adoption of the Constitution, few per- 
sons outside of the lawyers .of the convention had foreseen that 
there would be more need for the courts to correct violations 
of the fundamental law in this country than there was in 
England. But the conditions here were widely different. 
Our fathers desired to secure to the people every fundamental 
right which was the birthright of the Englishman, and also 



248 CONSTITUTIONAL HISTORY. 

those which the American sense of equality and government 
by the people might require. There were many states with 
their domestic governments, and one nation with a national 
government for the better security of all. It was necessary 
that both governments should be adequate to their purposes ; 
that national powers should be exercised by the nation, and 
domestic powers by the states, and that neither government 
should clash with the other. The people who created both 
governments reserved to themselves certain rights and priv- 
ileges which neither government could diminish, but which 
both must respect and protect. Over all the governments 
was the will of the people expressed by the Constitution, 
and all the governments were limited by this will thus ex- 
pressed. 

The judicial department was created to declare the law in 
actual cases of contest and dispute. What law should be 
declared ? There were three kinds and sources of law : First, 
the law or will of the people as embodied in the Constitution ; 
Second, the law which Congress might enact ; Third, the law 
which the states might enact. But the Constitution was the 
paramount law, while Congress had only such legislative 
power as the Constitution conferred. The states had such 
powers of domestic legislation as were reserved to them by 
the Constitution ; that is to say, all legislative powers con- 
ferred by their respective state constitutions, not denied by 
the federal Constitution or in conflict with it. This was an 
artificial arrangement, suggested, it is true, by necessity and 
expediency, but very unlike the slow and natural growth of 
the English system. 

It was a compound of governments, coordinate and yet in- 
terdependent in functions ; each part theoretically defined and 
placed, but liable if unskilfully operated to clash with another. 

The success of such a scheme required the existence of a 
supreme tribunal to ascertain and declare the actual law in 
cases and controversies between litigants, since it was probable 
that one government would, in enacting laws, encroach upon 
the jurisdiction of the other, and violate the fundamental law 
of the Constitution. Hence the Judiciary Department of the 
United States. 



COURTS' DECLARE, NOT MAKE, LAWS. 249 

It is plain enough now that an act of Congress, or of the 
legislature of a state, which it has no power or authority to 
enact, is no law at all ; and it is equally plain that there must 
be some final and competent tribunal to ascertain and decide 
when an apparent law is no law ; otherwise doubt and conflict 
would result in anarchy. The vesting of such power in the 
Supreme Court of the United States does not constitute that 
Court the superior of the states or of the other departments 
of the government of the United States. The Court has no 
creative power ; it can make no law. The Court does not in 
case of an alleged conflict between the laws of Congress, or of 
a state and the national Constitution, attempt to make any 
new law or rule, but only to find out and declare what has 
always been the law and rule. It does not impose its own 
will as the law, but ascertains and declares whether the will 
of Congress, or of the state, as made in the form of a law, is 
in fact rightly so made ; or whether the constitutional limita- 
tions are such that the attempted exercise of the law-making 
power cannot be exercised within the limits imposed. 

An alleged law which there is no power to make must be 
void. An alleged law which some other body than the legisla- 
tive body which assumes to make it has the sole power to 
make must be void. Any alleged law which a supreme power 
has prohibited must be void. An unfounded pretension to 
power cannot be rightful power. If the Constitution, and laws 
of the United States made in pursuance thereof, and all treaties 
made under the authority of the United States, are the su- 
preme law of the land, then all other laws to the contrary can- 
not also be supreme ; the supreme law must prevail ; the con- 
trary law must be invalid. If the judges in every state are 
bound by the supreme law, " anything in the constitution or 
laws of any state to the contrary notwithstanding," and yet do 
not by their judgments give effect to the supreme law that 
binds them, their error ought to be corrected upon appeal. 
If the Supreme Court has appellate jurisdiction of " all cases 
in law and equity " arising under the supreme law, the word 
all covers cases of the kind in the state courts as well as in the 
inferior federal courts. 

These propositions seem simple to us, possibly because we 



250 CONSTITUTIONAL HISTORY. 

regard them in the light of acquired and established methods 
of reasoning and construction. If the habit of reasoning or 
the authoritative construction had been the other way, it is 
not improbable that we should regard such propositions as in- 
genious fallacies, plausible but unsound. 

It was difficult for the lawyers and judges of the last cen- 
tury to yield assent to the doctrine that a law enacted by the 
legislative department, and approved by the executive depart- 
ment, could, because in conflict with the Constitution, be de- 
clared void by the judicial department. The proposition was 
a shock to their traditions and habits of thought. It is true 
that a few old cases could be found in the English reports, in 
which, as in Bonham's case, 1 it is said : — 

" And it appears in our books that in many cases the common law 
will control acts of Parliament and sometimes adjudge them to be ut- 
terly void ; for when an act of Parliament is against common right 
and reason, or repugnant or impossible to be performed, the common 
law will control it and adjudge such act to be void." 

But the cases cited in illustration of this dictum show that 
the court simply used common sense in construing an act of 
Parliament, and had no constitutional authority to declare it 
void ; and that they held that Parliament could not be con- 
sidered as intending by the letter of an act to do vain and im- 
possible things, or to overthrow by implication rules of law 
and of right which by immemorial usage were regarded as 
of common right. They construed the act : construction may 
change the meaning of a law, but cannot destroy its validity. 
A rule of construction by which the courts ascertain the mean- 
ing of a statute ought not to be confounded with the constitu- 
tional power to declare it void. Nor did the lawyers of the 
last century suppose that there was any analogy between the 
two cases. An act of Parliament could not be challenged for 
want of the power of Parliament to make it : its construction 
and meaning when challenged were subjects for the decisions 
of the court ; but the fact that the act needed interpretation 
implied the admission that the act w T as valid. The colonists 
had indeed contended that the Stamp Act, and the acts of 
Parliament imposing internal taxation were void because 

1 8 Coke, 118. 



UNCONSTITUTIONAL LAWS VOID. 251 

against Magna Charta, but the English government, following 
the opinion of its great lawyers and judges, scouted the propo- 
sition. 

The constitutional power of the courts to decide respecting 
the validity of legislative enactments was the consequence of 
constitutional limitations upon the legislative power. When, 
in 1776, the several colonies declared themselves free and in- 
dependent states, and severally adopted written constitutions, 
they placed limitations upon governmental power. It soon 
became necessary for the courts to compare the actual exer- 
cise of power with the limited right to exercise it. Before 
the Constitutional Convention met in Philadelphia, in 1787, 
several cases had arisen in the states in which the point was 
presented that the legislative act was void, because in excess 
of legislative power as given by the Constitution, or in oppo- 
sition to the Constitution itself. 1 The system of reporting 
was imperfect in those days, and these cases probably had 
not been generally brought to the attention of the profession. 
Mr. Gerry, however, in the Constitutional Convention, stated 
that state courts had already declared laws to be void because 
unconstitutional, and he said such would unquestionably be 
the duty of the federal judiciary. This view was generally 
concurred in by the delegates. 

Oliver Ellsworth, a delegate from Connecticut, afterwards 
a member of the convention of his state which ratified the 
Constitution, later a member of Congress and author of the 
Judiciary Act of 1789, and still later Chief Justice of the Su- 
preme Court of the United States, may be presumed to have 
been familiar with the views of the members of the federal 
convention, and with the object and scope of the judiciary 
article of the Constitution. In the Connecticut convention he 
said : — 

" This Constitution defines the extent of the powers of the general 
government. If the general government should at any time over- 
leap their limits, the judicial department is a constitutional check. 
If the United States go beyond their powers, if they make a law 
which the Constitution does not authorize, it is void ; and the judi- 

1 A collection of such cases can be found in an interesting article in the nine- 
teenth volume of the American Law Keview, page 175. 



252 CONSTITUTIONAL HISTORY. 

cial power, the national judges, who, to secure their impartiality, are 
to be made independent, will declare it void. On the other hand, if 
the states go beyond their limits, if they make a law which is an 
usurpation upon the general government, the law is void ; and up- 
right, independent judges will declare it to be so." 

It is worthy of notice that Judge Ellsworth did not here 
say that the national judges would declare the unconstitu- 
tional state law to be void. He probably limited his meaning 
to " the judges in every state," who, by the sixth article of the 
Constitution, are declared to be bound by the supreme law of 
the Constitution. Whether the national judges should have 
power upon appeal to declare void a state law in violation of 
the Constitution was by the Constitution itself made to de- 
pend upon the act to be passed by Congress, regulating the 
appellate jurisdiction of the Supreme Court and prescribing 
the exceptions to the extent of its jurisdiction. 1 

Mr. Hamilton, in the seventy-eighth number of " The Fed- 
eralist," is explicit in the assumption of the superiority of the 
Constitution over any hostile legislative act. He says : — 

" There is no position which depends on clearer principles than 
that every act of delegated authority contrary to the tenor of the 
commission under which it is exercised is void. No legislative act, 
therefore, contrary to the Constitution can be valid. To deny this 
would be to affirm that the deputy is greater than his principal ; that 
the servant is above his master ; that the representatives of the peo- 
ple are superior to the people themselves ; that men acting by virtue 
of powers may do not only what their powers do not authorize, but 
what they forbid. . . . The interpretation of the laws is the proper 
and peculiar province of the courts. A constitution is in fact, and 
must be regarded by the judges as, a fundamental law. It must, 
therefore, belong to them to ascertain its meaning, as well as the 
meaning of any particular act proceeding from the legislative body. 
If there should happen to be an irreconcilable variance between the 
two, that which has the superior obligation and validity ought to be 
preferred. In other words, the Constitution ought to be preferred 
to the statute ; the intention of the people to the intention of their 
agents." 

Mr. Hamilton then proceeds to show that under a limited 

1 Art. 3, sec. 2, sub. 2. 



THE COURT OFFENDS THE STATES. 253 

constitution the courts may properly be made the bulwarks 
of the Constitution against legislative encroachment. 

Still this preliminary discussion but vaguely touched the 
constitutional power of the federal judiciary to declare a state 
law void because unconstitutional. That the courts ought to 
declare an unconstitutional law void was the proposition of 
the advanced thinkers and writers. But what courts ? This 
question Judge Ellsworth, in his draft of the judiciary act 
passed by the first Congress in 1789, attempted to settle. 
Respecting the decrees of state courts, the act provided : — 

" A final judgment or decree in any suit in the highest court of a 
state in which a decision in the suit could be had, where is drawn in 
question the validity of a treaty, or statute of, or an authority exer- 
cised under, the United States, and the decision is against their valid- 
ity ; or where is drawn in question the validity of a statute of, or an 
authority exercised under, any state, on the ground of their being re- 
pugnant to the Constitution, treaties, or laws of the United States, 
and the decision is in favor of their validity ; or where any title, 
right, privilege, or immunity is claimed under the Constitution, or 
any treaty or statute of, or commission held, or authority exercised 
under, the United States, and the decision is against the title, right, 
privilege, or immunity specially set up or claimed by either party, 
under such Constitution, treaty, statute, commission, or authority, 
may be reexamined, and reversed or affirmed, in the Supreme Court 
upon a writ of error." 

The Supreme Court moved slowly, cautiously, and even 
hesitatingly, in the assertion of its novel powers. But cau- 
tious as it was, it soon brought upon itself the wrath of Con- 
gress and the people. In 1793, in Chisholm v. The State of 
Georgia, 1 the Court decided that a state could be sued by an 
individual citizen of another state. This decision was based 
upon the constitutional provision that the judicial power shall 
extend to controversies " between a state and citizens of 
another state." This decision was contrary to the opinion 
which generally prevailed. Mr. Hamilton, in " The Federal- 
ist," had said that the constitutional provision only applied 
to actions to be brought by a state, and not against it. State 
sovereignty took instant and alarmed offence, and demanded 

1 2 Dallas, 419. 



254 CONSTITUTIONAL HISTORY. 

an amendment to the Constitution. Many of the states were 
heavily in debt, and were exposed by this decision to like 
suits. The State of Massachusetts wap sued. Governor 
Hancock, as soon as the writ was served, convened the legis- 
lature, and that body resolved to take no notice of the suit. 

The legislature of the State of Georgia passed an act sub- 
jecting to death, " without benefit of clergy," any marshal of 
the United States, or other person, who should presume to 
serve any process against that state at the suit of an indi- 
vidual. 

The Eleventh Amendment to the Constitution followed. 
This amendment is peculiar, and the Court might well con- 
sider its phraseology offensive. It does not undertake to alter 
any provision of the Constitution, but declares that — 

" The judicial power shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted against one of the United 
States by citizens of another state, or by citizens or subjects of any 
foreign state." 

The amendment reversed the decision and doctrine of the 
Court. It gave and was intended to give the Court solemn 
warning that it had assaulted the sovereignty of a state, and 
had made a grave mistake. It might well be considered as 
an admonition to repress any tendency to enlarge the scope 
or meaning of the Constitution by liberality of interpretation. 
It affirmed the non-suability of a state, at least without its 
own consent. 

This immunity of a state from suit by an individual pro- 
ceeds upon the theory that a sovereign state is itself the foun- 
tain of justice, and that it will, from its own sense of honor, 
make ample provision for the examination and satisfaction of 
any claim upon its justice. To compel it to appear against 
its will in the court of another jurisdiction is an imputation 
of inferiority, and of a lack of justice and honor. This theory 
is a pleasant one, and is generally true. But many states 
have not hesitated to repudiate their own bonds. The losses 
which have been visited upon delayed, scaled, and plundered 
investors in state bonds probably exceed $100,000,000. Nu- 
merous attempts have been made to correct this gross in jus- 



STATE REPUDIATION OF DEBTS. 255 

tice. The Constitution permits one state to sue another in 
the Supreme Court of the United States. A few suits of the 
kind have been brought, mainly respecting conflicting claims 
to boundary lines. The provision is an admirable one. While 
it asserts the supremacy of the federal jurisdiction, it admits 
the equality of the suitors. The holders of state bonds have 
obtained permission of their state to assign their bonds to it, 
and then their state has sued the defaulting state. But these 
suits have failed ; the Supreme Court properly holding that 
such a suit is an indirect attempt to defeat the constitutional 
immunity of a state from individual suit. Suits against state 
officers have failed for the like reason. 

The state cannot, by repudiating its contract, exempt its 
officers from suit, if ihey, in reliance upon such repudiation, 
seize the property of an individual to satisfy a tax or demand 
which he has satisfied according to the terms of the contract. 
The constitutional immunity from suit is a shield but not a 
sword. 

Thus the law of the State of Virginia authorized its bond- 
holders to pay their taxes in the coupons of state bonds. The 
state subsequently changed the law so as to make such pay- 
ment subject to new and restrictive conditions. A tax-payer 
tendered his coupons for payment of his tax in the manner 
provided in the original law. The collector, refusing to aceept 
them, levied upon his goods. The Supreme Court held that 
he was a trespasser, that the state could not impair the ob- 
ligation of its contract, that the collector had no unsatisfied 
tax to collect, that the fact that the state could not be sued 
did not exempt its wrong-doing officer from suit to repair the 
wrong he had done. 1 

Several suits were brought against officers of the state to 
prevent them from acting with respect to these coupons in 
the manner prescribed by the state law. These suits all 
failed, for the reason that they were indirect attempts to sue 
the state. The citizen was told that his constitutional right 
to the benefit of his contract with the state was his shield 
against aggression based upon the repudiation of that con- 
tract by the state, but the Constitution forbade him to use it 
1 Poindexter v. Greenhow, 114 U. S. Rep. 270. 



256 CONSTITUTIONAL HISTORY. 

as a sword to coerce the state. The distinction seems to be a 
narrow one, and to result in injustice. It perhaps would be 
wise to repeal the Eleventh Amendment, and thus remove the 
temptation to extravagance and dishonesty which the power 
to repudiate presents. 



LECTURE XL 

THE INFLUENCE OF THE SUPREME COURT. — CONTINUED. 

The power of the Supreme Court to declare an act of Con- 
gress void because not authorized by the Constitution, or in 
conflict with it, was first presented in 1792, under the act of 
Congress for the relief of pensioners, already referred to ; but 
no decision was made. The question might be said to be 
settled by the decision that Congress could not assign non- 
judicial duties to judicial officers. 1 It was again discussed in 
1T96. 2 Congress passed an act imposing a tax upon carriages. 
The Constitution 3 provides that " direct taxes shall be appor- 
tioned among the several states according to their respective 
numbers." There were more carriages in that day in Vir- 
ginia, in proportion to the population, than in any other state, 
and hence if the tax was a direct one, Virginia would pay 
more than her share. The Court held that it was not a direct 
tax, but rather an impost or excise, which the Constitution 
directs shall be uniform throughout the United States. The 
law was thus sustained. Mr. Justice Samuel Chase, in the 
course of his opinion, makes the following remarks : " As I 
do not think the tax upon carriages is a direct tax, it is un- 
necessary for me at this time to determine whether this Court 
constitutionally possesses the power to declare an act of Con- 
gress void, on the ground of its being made contrary to and 
in violation of the Constitution ; but if the Court have such 
power, I am free to declare that I will never exercise it, but 
in a very clear case." 

But at the same term the Court, in the case of Ware v. Hyl- 
ton, 4 decided that a statute of the State of Virginia, enacted 
before the treaty of peace between the United States and 

1 Hayburn's case, 2 Dallas, 409. ' 2 Hylton v. United States, 3 Dallas, 171. 
3 Art. 1, sec. 2. 4 3 Dallas, 199. 

17 



258 CONSTITUTIONAL HISTORY. 

Great Britain, was void, because the statute was contrary to 
the treaty, and the Constitution made the treaty the supreme 
law. The treaty therefore overruled the statute. 

In the case of Calder v. Bull, 1 in 1798, the point to be de- 
cided was whether a statute of Connecticut was not an ex post 
facto law, and therefore void as forbidden by the federal Con- 
stitution. The Court held it was not an ex post faeto law, and 
thus escaped holding it void. Mr. Justice Chase, in giving the 
opinion of the Court, used these words : " All the powers dele- 
gated by the people of the United States to the federal gov- 
ernment are defined, and no constructive powers can be exer- 
cised by it." Justice Chase then was, or afterwards became, 
an ardent and pronounced champion of the supreme powers 
of the general government. His arbitrary conduct and par- 
tisan speeches at the circuit courts in which he presided, and 
his rulings upon the trial of offenders against the odious sedi- 
tion laws, so exasperated the Anti-Federalists that they pro- 
cured his impeachment by Congress in the administration of 
President Jefferson. We may believe that his temperament 
was ill-suited for judicial fairness, but in ability he was more 
than a match for his accusers, and he easily escaped convic- 
tion when brought to trial. His dictum that no construc- 
tive powers can be exercised by the federal government is in- 
teresting evidence of contemporaneous opinion. It was soon 
repudiated by the Court, but remained the cardinal rule of 
constitutional construction of the Jeffersonian or democratic 
party, though not always adhered to in practice. 

In the case of Cooper v. Telfair, 2 decided in 1800, Judge 
Chase said: "It is indeed a general opinion, it is expressly 
admitted by all this bar, and some of the judges have individ- 
ually in the circuits decided, that the Supreme Court can de- 
clare an act of Congress unconstitutional and therefore in- 
valid, but there is no adjudication of the Supreme Court itself 
upon the point. Although it is alleged that all acts of the 
legislature (of a state) in direct opposition to the prohibitions 
of the Constitution would be void, yet it still remains a ques- 
tion where the power resides to declare it void." 

It was not until 1803, fourteen years after the Constitution 

1 3 Dallas 387. 2 4 Dallas, 14. 



UNCONSTITUTIONAL LAWS DECLARED VOID. 259 

went into operation, that the Supreme Court explicitly an- 
nounced the doctrine that a law of Congress repugnant to the 
Constitution is void. It was the case of Marbury v. Madison, 1 
before referred to. The case was apparently an insignificant 
one, but the doctrines enunciated are so important and so lu- 
cidly expressed, and have been ever since so controlling as 
authority, that it may without impropriety be somewhat fully 
stated. 

President Adams, just before the expiration of his term of 
office, had appointed Mr. Marbury justice of the peace for 
the District of Columbia, to hold office for five years. Jus- 
tice Marbury's commission was duly made out during Mr. 
Adams's incumbency, but was not delivered, and it passed, 
upon President Adams's retirement, into the hands of Mr. 
Madison, President Jefferson's new Secretary of State. The 
reported case does not so recite, but history informs us, that 
there was much gossip in those days about the " midnight 
judges "whom President Adams appointed the last night of 
his term. If we credit this gossip, we may suppose there was 
not time to deliver this commission to Mr. Marbury after it 
was signed, and before the clock struck twelve, at midnight, 
March 3, 1801. Mr. Marshall was President Adams's Sec- 
retary of State, and continued for several weeks after his ele- 
vation to the chief justiceship to discharge the duties of the 
former office. It is not improbable that he delivered this 
commission, as a part of the unadministered assets of the of- 
fice, to Mr. Madison. Mr. Adams was a Federalist, and Mr. 
Jefferson a Republican, as party names then went. At any 
rate, Mr. Madison refused to deliver to Mr. Marbury his com- 
mission, and Mr. Marbury made application to the Supreme 
Court for a mandamus to compel Secretary Madison to de- 
liver it to him. The Court held that Mr. Marbury was en- 
titled to his commission ; that Mr. Madison had no right to 
withhold it ; that a mandamus was a proper proceeding to com- 
pel its delivery ; but after holding so much in favor of Mr. 
Marbury and against the administration, it then held that 
the Supreme Court had no power to issue the mandamus, and 
therefore could not give Mr. Marbury any aid. One would 
suppose that if the Court had no power to aid the claimant, 

1 1 Cranch, 137. 



260 CONSTITUTIONAL HISTORY. 

its decision that his claim to the commission was a valid one 
would not be authoritative. Be that as it may, the great 
point decided, and which the Court did have the right to de- 
cide, was that the Court could not grant the mandamus, be- 
cause the act of Congress conferring the power upon the Court 
to issue it was not itself authorized by the Constitution, but 
was repugnant to it. The judiciary act authorized the Su- 
preme Court to issue writs of mandamus " to any person hold- 
ing office under authority of the United States." Secretary 
Madison was such a person. But the act of Congress was 
held to be unconstitutional, because the grant of the writ was 
the exercise of original jurisdiction. The Constitution de- 
fined the original jurisdiction of the Court, mentioned the 
cases in which it could be exercised, and provided that in all 
other cases the Court should have appellate jurisdiction ; and 
that as the Constitution enumerated the cases in which the 
Court had original jurisdiction, the act of Congress confer- 
ring it in other cases was repugnant to the Constitution, and 
therefore void. Chief Justice Marshall announced the judg- 
ment of the Court upon this branch of the case, in an opinion 
remarkable for its clear and convincing exposition of the prin- 
ciples which rendered the Constitution the paramount law, 
and the absolute and self-executing nullifier of every attempted 
law repugnant to it. This opinion has since been, and still 
is, held in the very highest esteem, and may be said to be 
nearly equivalent to a part of the Constitution itself. 

In some of the states, the decisions of their courts declaring 
a state law unconstitutional provoked the resentment of the 
people. A case arose in Rhode Island, in 1786. The state 
had chartered a bank and declared its bills legal tender, and 
imposed a heavy penalty to be inflicted by the judge without 
a jury trial, upon any person who should refuse to receive 
them. A butcher refused to take them in payment for his 
meat. He was prosecuted for the penalty, and the judges held 
the law unconstitutional, because the charter secured a jury 
trial which the law forbade. The judges were impeached 
though not convicted ; but the legislature refused to elect 
them again, and thus paper money won the victory. 1 In 

1 Cooley's Const. Lim. 194. 



THE YAZOO FRAUDS. 261 

1808, in Ohio, the judges declared a state law unconstitu- 
tional, and were impeached, but not convicted. 1 In 1822 an 
attempt was made in Kentucky, without success, to remove 
a judge who had declared a law unconstitutional. 2 The peo- 
ple seemed to think that a judge who declared a law uncon- 
stitutional unjustifiably rated his power above that of the 
legislative and executive departments. But the truth is, the 
judge simply declares what the law is, and if the law of the 
legislature and the Constitution are in conflict or repugnant 
to each other, he must declare against the law of the legis- 
lature. 

To return to the Supreme Court of the United States : in 

1809, the Court decided that no state could pass a law to im- 
pair the effect of a judgment which a court of the United 
States had rendered. 3 If the contrary doctrine had prevailed, 
an important step would have been taken towards stripping 
the nation of any effective power. 

The State of Georgia passed a law in 1795, under which 
certain lands belonging to the state were sold to individuals. 
The passage of this law was procured by bribery and fraud, 
and a subsequent legislature repealed it and declared the con- 
veyances given under it void. The Court held that the state, 
having, under the first law, made a contract with the pur- 
chaser of the land, could not, by a subsequent law, destroy or 
impair that contract. 4 This was the case of the " Yazoo 
frauds." These frauds were famous for fifty years, and made 
and ruined the political fortunes of many a Georgia politician. 
The case in question afforded a striking illustration of the 
power of the nation, under the Constitution, — not, indeed, 
to compel a state to perform its contract, but to prevent it 
from rescinding and nullifying it, after it had been per- 
formed, to the prejudice of the persons who had dealt with 
the state. Thus, the injustice which the federal Constitution 
forbids a state to commit, the Supreme Court is competent to 
remedy. 

The fact that the Constitution conferred the power and 
made it the duty of the Court, when the case came before it, 

1 Cooley's Const. Lira. 194. 2 23 Niles's Reg. Sup. 153. 

3 United States v. Peters, 5 Cranch, 115. 4 Fletcher v.Peck, 6 Cranch, 87. 



262 CONSTITUTIONAL HISTORY. 

to declare a law, either state or national, void, when in con- 
flict with the federal Constitution gradually became familiar 
to the legal profession and to the people. 

While this proposition met with general acceptance, the 
claim that the Supreme Court could, in the exercise of its ap- 
pellate jurisdiction, review and reverse the decision of a state 
court, in cases in which the latter court held the state law 
not to be in conflict with the federal Constitution, or held the 
federal law or authority invalid, was vigorously challenged. 
The Supreme Court did exercise this power in a few instances, 
but when its full scope and consequences came to be perceived, 
the exercise of the jurisdiction was strenuously and bitterly 
resisted, not only at the bar, but by several of the state legis- 
latures. The supremacy of the Constitution, and of the laws 
and treaties of the United States made in pursuance thereof, 
was admitted ; but the contention was that the Constitution 
of the United States did not give to the Supreme Court ap- 
pellate jurisdiction, except with respect to 'the cases which 
were decided in the " inferior courts " of the United States, 
and therefore did not extend to cases decided in the state 
courts. 

The constitutionality of the section of the judiciary act, al-' 
ready cited, which provides that in the cases therein specified 
the final judgment of the state court might be reexamined, 
reversed, or affirmed in the Supreme Court of the United 
States, was denied. Of course, whatever cases arise in the 
state courts must be decided there. If a party rests his claim 
or defence upon the laws, treaties, or authority of the United 
States, the state courts must decide whether his claim or de- 
fence is good or bad. If the claim or defence is good under 
the state law, but the opposing party alleges that the state 
law is void, because in conflict with the Constitution of the 
United States, the state court must decide that question. A 
plausible argument could be, and was, made that the appel- 
late jurisdiction of the Supreme Court of the United States 
is limited by the Constitution to the judgments of the inferior 
courts of the United States. 

The Constitution provides for one Supreme Court, and for 
inferior courts of the United States. It then specifies the 



EXTENT OF APPELLATE JURISDICTION. 263 

cases to which the judicial power of the United States shall 
extend, and makes the exercise of that power consist of both 
original and appellate jurisdiction : with respect to the Su- 
preme Court it makes its original jurisdiction very small and 
its appellate jurisdiction very full. The inference was drawn 
that the inferior courts possess the original jurisdiction and 
the Supreme Court the appellate. That is, the inferior courts 
should hear and decide in the first instance the cases to which 
the judicial power of the United States extends, and an ap- 
peal would then lie from the decision of the inferior courts of 
the United States to the Supreme Court. This construction, 
it was contended, made the federal system complete and har- 
monious, and satisfied the terms of the Constitution. The 
words of the Constitution, providing that " the judicial power 
of the United States shall extend to all cases in law and 
equity arising under this Constitution," must mean only all 
those cases to which the judicial power of the United States 
extends, which the inferior courts of the United States decide ; 
that if there had been any intention to extend the appellate 
jurisdiction to cases decided by the state courts, the Consti- 
tution would have contained an explicit declaration to that 
effect ; but it simply bound the state judges to obey the Con- 
stitution as the supreme law. The intention to prostrate the 
state courts at the feet of the national courts could not be 
presumed ; the obedience of the state judges was presumed. 
The position was further supported by argument derived from 
the Tenth Amendment, that " The powers not delegated to 
the United States, nor prohibited by it to the states, are re- 
served to the states, respectively, or to the people." The 
Constitution also requires " that full faith and credit shall be 
given in every state to the judicial proceedings of every other 
state, and Congress is required to prescribe by general laws 
the manner of proof and its effect." 1 The nature and purpose 
of the Constitution were considered: the United States, it 
was contended, is the servant or agent of the states in na- 
tional concerns, not their master, — certainly not more than 
their equal. The state is a sovereign, and as such is equal in 
right with every power with which it has entered into a com- 

1 Art. 4, sec. 1. 



264 CONSTITUTIONAL HISTORY. 

pact, or assumed any obligation, to judge concerning its full 
performance of its obligations, or the measure of its rights 
under the compact. 

But the Supreme Court did not regard the argument sound. 
It said, if it limited the meaning of the clause " all cases 
arising under the Constitution " to all such cases in the fed- 
eral courts, and extended it to no other, its jurisdiction would 
not extend to all cases, but only to some of them. If every 
state court could give the final unappealable decision upon 
the constitutional questions coming before it, then the Consti- 
tution would have different force and meaning in the several 
states, and the equality of constitutional rights would be de- 
stroyed, — an evil which this provision of the Constitution 
could prevent, and must therefore have been devised to pre- 
vent. 

This decision was made in a case brought before the Court 
upon appeal from the Court of Appeals of Virginia. 1 The 
state court at first refused to respect or enforce the decree of 
the Supreme Court, but subsequently receded. The objec- 
tion was again urged in the case of Cohens v. The State of 
Virginia. 2 In that case Cohens was convicted upon an in- 
dictment for selling lottery tickets. His answer was that he 
sold in Virginia lottery tickets authorized by Congress for a 
lottery to be drawn in the city of Washington. Cohens 
appealed to the Supreme Court of the United States. The 
State of Virginia urged that the Court could not review the 
decision, because the state was a defendant and could not be 
sued. The Court held that the appeal was not a suit against 
the state, but a proceeding bringing the record of the state 
court into the Supreme Court in a case arising under the laws 
of the United States ; that the Constitution did confer appel- 
late jurisdiction upon the Supreme Court, since its appellate 
jurisdiction extends to all cases arising under such laws, no 
matter in what court decided. 

The State of Pennsylvania in 1808 attempted to resist, by 
an act of its legislature, the execution of a judgment of the 
District Court of the United States, and when, notwithstand- 
ing this act, the Supreme Court of the United States by 

1 Martin v. Hunter's Lessee, 1 Wheaton. 304 . 2 6 Wheaton, 264. 



STATE RESISTANCE TO FEDERAL DECREES. 265 

mandamus directed the District Court to execute its decree, 
the marshal of that court, who attempted to execute it, was 
for a time resisted by the armed militia of Pennsylvania, 
acting under the authority of the state. The state, after 
much irritating controversy, finally receded from its opposing 
attitude, and allowed the judgment of the court of the United 
States to be executed. 1 The case arose as follows : In the 
Revolutionary War Gideon Olmstead and others, citizens of 
Connecticut, were made prisoners by the British and put to 
service on the British sloop Active. On a voyage from 
Jamaica to New York the prisoners seized the vessel, confined 
the captain, and sailed for Egg Harbor. In sight of that port 
the Active was captured by an armed cruiser belonging to the 
State of Pennsylvania, brought into port, and was condemned 
by the admiralty court as a prize of the Pennsylvania cap- 
tors. Olmstead and his associates claimed the prize as theirs, 
and they appealed to the Court of Appeals established for the 
purpose by the Congress of the confederacy, and this court 
awarded the prize to Olmstead and his associates, reversing 
the admiralty decree, and directing the marshal to sell the ves- 
sel and cargo and pay the proceeds to Olmstead and his asso- 
ciates. But the marshal under the direction of the admiralty 
court, although he sold the vessel and cargo, refused to pay 
the proceeds to Olmstead, but, in contempt of the order of the 
court of the confederacy, paid the proceeds to Judge Ross, 
the judge of the Court of Admiralty, and he paid the money 
to the treasurer of the State of Pennsylvania, taking from 
him a bond of indemnity. The state claimed the prize money. 
The treasurer's term of office expired, but he retained the 
money in order to make good the bond he had given the 
judge. The treasurer died, and Olmstead and his associates 
sued his executors in the United States District Court for the 
money and obtained judgment. But now the legislature of 
Pennsylvania passed an act to protect the executors in their 
disobedience of the decree of the District Court, and to employ 
force if necessary for the purpose. Judge Peters, not wishing 
to embroil the United States with the state, refused to direct 
the execution of his own decree. Hence the application to 
1 United States v. Peters, 5 Cranch, 115. 



266 CONSTITUTIONAL HISTORY. 

the Supreme Court of the United States to compel its execu- 
tion. The latter Court held that Olmstead was entitled to 
the money, because the Court of Appeals established by the 
confederate Congress had jurisdiction to reverse the original 
decree of the admiralty court, and because the State of Penn- 
sylvania had no right to arrest the execution of the decree, or 
to decide that the court which pronounced it was without 
jurisdiction. " If," said Chief Justice Marshall, in delivering 
the opinion of the Court, " the legislatures of the several states 
may at will annul the judgments of the courts of the United 
States, and destroy the right acquired under those judgments, 
the Constitution itself becomes a solemn mockery, and the 
nation is deprived of the means of enforcing its laws by the 
instrumentality of its own tribunals." The final triumph of 
the United States was the occasion of intense chagrin on the 
part of the champions of state sovereignty, but they did not 
think it prudent to plunge the state into war with the United 
States. 

South Carolina, in 1832, as we have already seen, at- 
tempted by her ordinance to nullify the tariff laws of the 
United States within that state. The ordinance provided that 
no appeal from a court of that state should be taken to a 
court of the United States in any case arising under laws 
passed in pursuance of the ordinance. Such appeal was de- 
nounced as a contempt of the state court, and the offender 
punishable. That difficulty was composed, and the ordinance 
in due time repealed. 

In 1824 the State of Kentucky was greatly exercised over 
certain decisions of the Supreme Court with respect to a law 
of the state regulating titles. This law was held to violate 
the contract by which Virginia ceded the territory forming 
the state. The Supreme Court also held the laws of Ken- 
tucky, framed to stay the prompt and efficient collection of 
debts, to be void, because violating the obligation of the con- 
tract under which the debts were created. 

The State of Ohio was exasperated because the Court held 
that the state had no right to tax the property held by the 
branches of the Bank of the United States within that state. 
These branches were held to be, like the bank itself, agencies 



ATTEMPT TO REPEAL JUDICIARY ACT. 267 

of the government of the United States, and therefore not tax- 
able by the state, since the power to tax might be exercised 
to destroy the agency. In defiance of the judgment of the 
United States Court, the state tax was collected by forcible 
seizure of the funds of one of these branches, but restitution 
was subsequently made. 

The exercise by the Supreme Court of jurisdiction to re- 
view and reverse upon appeal the judgments of state courts, 
in cases in which the supremacy of the Constitution of the 
United States was in question and 'denied, offended the cham- 
pions of state sovereignty. A bill was introduced in Congress 
in 1831 to repeal the twenty-fifth section of the Judiciary Act 
of 1789, which defined and regulated the jurisdiction. The 
majority of the committee to whom the bill was referred re- 
ported in favor of the repeal, upon the ground that the juris- 
diction was not conferred by the Constitution. A minority 
report was submitted supporting the jurisdiction. The bill 
was rejected by a vote of one hundred and thirty -eight 
against, to fifty-one in its favor. The lucid expositions of its 
jurisdiction by the Supreme Court, notably in the cases of 
Martin v. Hunter's Lessee, 1 and Cohens v. Virginia, 2 satisfied 
and convinced the majority in Congress. 

Perhaps the case most important in the principles enunci- 
ated, and in the consequences resulting from them, that ever 
came before the Supreme Court is known as McCullough v. 
Maryland. 3 It involved the constitutionality of the charter 
of the Bank of the United States, and thus in a great degree 
the implied powers of Congress under the Constitution. It 
also involved the constitutionality of a state law imposing a 
tax upon the property held by a branch of the bank within 
the State of Maryland. Under the state law this property 
was taxed, and the bank refused to pay it, and its cashier was 
sued. The state court upheld the state law and the tax, and 
gave judgment against the bank. The bank, it will be re- 
membered, obtained its first charter from Congress in the 
first administration of Washington. It was one of the prod- 
ucts of the brain of Hamilton, and one of the victories of 
the Federalists over their enemies. Certainly no express 
1 1 Wheaton, 304. 2 6 Wheaton, 264. 3 4 Wheaton, 316. 



268 CONSTITUTIONAL HISTORY. 

power could be found in the Constitution to justify its crea- 
tion ; the existence of any adequate implied power was denied 
with emphasis and confidence by the Anti-Federalists. The 
charter first granted expired in 1811. Congress then at first 
refused, by the casting vote of George Clinton the Vice-Presi- 
dent, to renew it. Its affairs were wound up, and its stock- 
holders received 109J per centum upon the dollar for the 
stock. Then local or state banks took its place. These sus- 
pended during the War of 1812, and great distress was occa- 
sioned by a depreciated paper currency. The Anti-Federalists 
were in power. The war and the bad currency of the local 
banks, and the need of the government to borrow money, 
gradually reconciled the Anti-Federalists to the project of an- 
other national bank. In 1816, five years after the first bank 
had discontinued its business, the necessity for financial re- 
lief, and the hope to find it by means of the bank, led to its 
charter substantially upon the model of the original one. It 
had a capital of $35,000,000, of which the United States held 
$7,000,000. It had twenty-five branches in the different 
states. It was for that day a great institution. It had 
power and patronage which many enjoyed, and perhaps more 
felt that they might enjoy, if properly allotted. It is not sur- 
prising that the old bitterness and divisions which caused 
Hamilton and Jefferson to fall asunder in the cabinet of 
Washington should arise between the new generation of rival 
public men. 

When the bank refused to pay the tax which the state im- 
posed and appealed to the Constitution for its justification, 
the state retorted by claiming that the Constitution did not 
permit it to exist. Both questions now came to the test of 
judicial decision. William Pinkney and Daniel Webster were 
counsel for the bank. Pinkney, by common fame, was then 
the leader of the American bar. He made the principal ar- 
gument upon his side. Chief Justice Marshall once said of 
him that " he was far away the greatest advocate he ever 
heard." He spoke to be heard rather than read. His argu- 
ment upon that occasion was long after remembered, and re- 
garded by those fortunate enough to hear it as unequalled for 
splendor and force. 



THE BANK CHARTER SUSTAINED. 269 

Luther Martin, already mentioned as one of the delegates 
to the Constitutional Convention, and an eloquent opponent of 
the ratification of the instrument, now led the array of counsel 
on behalf of the state. 

The Court sustained the constitutionality of the charter of 
the bank, and declared the law of the State of Maryland tax- 
ing it unconstitutional, upon grounds stated in a previous lec- 
ture. 1 

Respecting the power of the state to tax the property of 
the bank, the court held that the bank was created as one of 
the means to carry on the government ; that the power to 
create implied the power to protect it ; that if the state could 
tax it, it could so tax as to destroy it, and hence the state 
could destroy a governmental instrument of the United States 
— a proposition not admissible ; that the sovereignty of the 
state extended to everything which exists by its authority or 
permission ; that the bank did not so exist, but existed by vir- 
tue of the creative power of the United States, and was there- 
fore within the sovereignty of the United States, and without 
that of the state ; and, finally, that the sovereignty of the 
United States was exclusive of that of the state, and not sub- 
ject to any control or diminution on the part of the state. 

These conclusions were reached by a range of discussion 
much broader than this synopsis suggests. The powers of 
Congress, as thus defined, were found to be broad enough to 
give it, unchecked by any restrictions on the part of the states, 
ample authority, within the sphere of its enumerated powers, 
to use whatever expedient means it should decide to be nec- 
essary for the purpose of executing its enumerated powers. 
In other words, while the government was one of limited pow- 
ers, the powers it did hold it held supreme over the interfer- 
ence of the states, with all the means necessary and proper 
for their exercise and complete supremacy. 

Circumstances aided in giving to this case an importance 
and influence, with respect to questions involving the nature 
and origin of the government, not strictly necessary to the 
solution of the questions presented for decision. Counsel had 
deemed it important to discuss the question whether the Con- 

1 See page 113. 



270 CONSTITUTIONAL HISTORY. 

stitution emanated from the people, or whether it was a com- 
pact between sovereign and independent states. The Court 
said : — 

" The convention which framed the Constitution was indeed elected 
by the state legislatures. But the instrument, when it came from their 
hands, was a mere proposal, without obligation or pretensions to it. 
It was reported to the then existing Congress of the United States, 
with a request that it might be submitted to a convention of dele- 
gates chosen in each state by the people thereof, under the recom- 
mendation of its legislature, for their assent and ratification. This 
mode of proceeding was adopted; and by the convention, and by 
Congress, and by the state legislatures, the instrument was submitted 
to the people. They acted upon it in the only manner in which they 
can act safely, effectively, and wisely on such a subject, by assem- 
bling in convention. It is true they assembled in states, but where 
else should they have assembled? . . . From these conventions the 
Constitution derives its whole authority. The government proceeds 
directly from the people ; it is ordained and established in the name 
of the people ; and is declared to be ordained, * in order to form a 
more perfect union, establish justice, insure domestic tranquillity, 
and secure the blessings of liberty to themselves and to their poster- 
ity.' The assent of the states in their sovereign capacity is implied 
in calling a convention, and thus submitting that instrument to the 
people. But the people were at perfect liberty to accept or reject 
it ; and their act was final. It required not the affirmance and could 
not be negatived by the state governments. The Constitution when 
thus adopted was of complete obligation and bound the state sover- 
eignties. . . . 

" It is said," continued the Court, " that the people had already 
surrendered all their powers to the state sovereignties and had noth- 
ing more to give. But surely the question, whether they may re- 
sume and modify the powers granted to government, does not remain 
to be settled in this country. Much more might the legitimacy of the 
general government be doubted, if it had been created by the states. 
The powers delegated to the state sovereignties were to be exercised 
by themselves, not by a distinct and independent sovereignty, created 
by themselves. To the formation of a league, such as was the con- 
federation, the state sovereignties were certainly competent. But 
when, ' in order to form a more perfect union,' it was deemed neces- 
sary to change this alliance into a more effective government, possess- 
ing great and sovereign powers, and acting directly on the people, 



THE COURT THE FINAL ARBITER. 271 

the necessity of referring it to the people and of deriving its powers 
from them was felt and acknowledged by all. . . . The government 
of the Union, then, is emphatically and truly a government of the 
people. In form and substance it emanates from them. Its powers 
are granted by them, and are to be exercised directly on them and 
for their benefit." 

This opinion formed the basis of the great argument of 
Webster in his reply to Hayne, eleven years later ; of the proc- 
lamation of President Jackson against nullification in South 
Carolina ; and of the argument in defence of the indestructi- 
bility of the Union in the war of the rebellion in 1861. 

The Constitution, said the Court, in Texas v. White, 1 re- 
quires the United States to guarantee to every state a repub- 
lican form of government. Hence, when the rebellion broke 
out, Congress had the power to make all laws necessary and 
proper to carry that guarantee into effect, and to make that 
choice of means appropriate to the purpose. 

It finally came to be regarded as unquestionable law, not, 
however, without unavailing protests, that the Supreme Court 
was the final and proper arbiter in all questions of constitu- 
tional law, which, with the exception of the strictly political 
exercise of constitutional authority, could, under the Constitu- 
tion and the judiciary act, be brought before the Court. Mr. 
Chief Justice Taney, in 1858, in the case of Ableman v. 
Booth, 2 already referred to, said : — 

" No one can fail to see that, if such an arbiter had not been pro- 
vided in our complicated system of government, internal tranquillity 
could not have been preserved, and if such controversies between the 
respective powers of the United States and of the states were left to 
the arbitrament of physical force, our governments, state and national, 
would soon cease to be governments of laws ; and revolutions by 
force of arms would take the place of courts of justice, and of judicial 
decisions. . . . Nor is there," he continues, "anything in this suprem- 
acy of the general government, or the jurisdiction of its judicial tri- 
bunals, to awaken the jealousy or offend the natural or just pride of 
state sovereignty ; neither this government nor the powers of which 
we are speaking were forced upon the states. The Constitution of 
the United States, with all the powers conferred by it on the general 

1 7 Wallace, 700. 2 21 How. 506. 



272 CONSTITUTIONAL HISTORY. 

government, and surrendered by the states, was the voluntary act of 
the people of the several states, deliberately done for their own pro- 
tection and safety against injustice from one another. . . . The im- 
portance which the framers of the Constitution attached to such a 
tribunal for the purpose of preserving internal tranquillity is strik- 
ingly manifest by the clause which gives the Court jurisdiction over 
the sovereign states, when a controversy arises between them. In- 
stead of reserving the right to seek redress for injustice from an- 
other state by their sovereign powers, they have bound themselves 
to submit to the decision of this Court, and to abide by its judgment. 
And it is not out of place, here, to say that experience has demon- 
strated that this power was not unwisely surrendered by the states ; 
for, in the time that has already elapsed since this government came 
into existence, several irritating and angry controversies have taken 
place between adjoining states, in relation to their respective boun- 
daries, and which have sometimes threatened to end in force and 
violence, but for the power vested in this Court to hear and decide 
them. . . . 

" The Constitution was not formed merely to guard the states against 
danger from foreign nations, but mainly to secure union and harmony 
at home ; for if this object could be attained, there would be but 
little danger from abroad." 

It was feared by many when Chief Justice Taney succeeded 
Marshall, and the Court seemed about to be composed of the 
appointees of Jackson and presidents of his school, that the 
constitutional expositions of Marshall would be repudiated, 
and a narrow line of construction adopted, which would de- 
prive the nation of its ability to maintain its proper supremacy 
against the assaults of the states. Webster said he feared 
the Constitution would be destroyed by judicial construction. 
Judge Story, in 1845, expressed the same fear. But it was 
unfounded. The change which occurred during the twenty- 
eight years in which Taney sat in the seat of the Chief Justice 
did not result in any abandonment of the principles of con- 
struction which Marshall and his associates had enunciated. 
But the new cases, with their variety of circumstance, required 
a clear and fine discrimination in the application of those 
principles, and it was most admirably given. If we may judge 
from the increased number of dissenting opinions published, 
the Court was not so harmonious and united upon great con- 



BACKWARD STEPS ADVOCATED. 273 

stitutional questions, as it had previously been. When a new- 
question was presented involving the implied powers of the 
nation, or challenging the exercise of doubtful powers by the 
state, there was, perhaps, some shrinking back from the most 
advanced line of the national claim, and some pushing for- 
wards towards the most advanced line of the state claim, but 
the old landmarks were never abandoned. 

No backward steps were taken, although some members of 
the Court were advocates of a retrograde movement. In this 
respect Mr. Justice Daniel of Virginia, a member of the Court 
from 1841 to 1860, was conspicuous and consistent. During 
his nineteen years of service he wrote the opinion of the Court 
in only eighty-four cases. Of course he concurred with the 
Court in many more cases in which other members wrote the 
opinion. But he dissented in one hundred and eleven cases, 
either from the conclusion or the opinion of the Court. His 
dissent was generally based upon the theory that the Consti- 
tution must be literally and strictly construed. To use his 
words as reported in Marshall v. B. & O. R. R. Co. 1 

"The Constitution itself is nothing more than an enumeration of 
general abstract rules, promulged by the several states for the guid- 
ance or control of their creature or agent, the federal government, 
which for their exclusive benefit they were about to call into being. 
Apart from these abstract rules, the federal government can have no 
functions and no existence." 

He protested often and with emphasis against the doctrines 
of the majority, which he characterized either as additions to 
the Constitution or invasions of it. But he came too late into 
the Court to be able to lead it from its established principles. 

The consequences resulting from the decisions of the Su- 
preme Court, that the Constitution makes it the duty of the 
Court to declare an unconstitutional law, whether of Congress 
or of the state legislatures, void, when such declaration is nec- 
essary to the proper decision of the case before it, and that its 
appellate jurisdiction extends to all judgments of the state 
courts denying the supremacy of the federal Constitution over 
the state law, were most momentous. 

Not immediately, but gradually, ultimately, and surely, the 

1 16 Howard, 346. 
18 



274 CONSTITUTIONAL HISTORY. 

Court by its decisions separated the national and state powers 
from their confusing mixture, and gave to each clearness of 
outline and distinctness of place. It gave to the abstract 
words of the Constitution an active and commanding signifi- 
cance. It disclosed the instrumentalities by which rights con- 
ferred could be enjoyed, and wrongs forbidden could be averted 
or redressed. It composed conflicts, promoted harmony, and 
soothed passions. It defined the just limits of contending 
powers, separated encroaching jurisdictions, and restored each 
to its proper place. It lifted a dissolving and moribund nation 
to great strength and vitality. It gave to the states clear and 
accurate conceptions of their wide field of domestic government. 
It instructed coordinate departments. It vested the nation 
with its own, and did not impair the just powers of the states. 

The peaceful manner in which all this was accomplished 
made the accomplishment more remarkable. Revolutionary 
results without revolutionary means are rarely witnessed in 
the history of mankind. Congress was restrained from passing 
laws in excess of its powers, not indeed by the command of 
the Court, but because at the suit of the humblest person in 
the land an unconstitutional law perished in the presence of 
the decree which awarded justice to the suitor; partly also, 
because the wisdom and purity of the Court inspired a re- 
spect not less commanding than authority itself. 

In like manner the attempts of the states to encroach upon 
the national jurisdiction were palsied by the decree of the 
Court, not between the nation and state, but between the 
contending claimants over hostile personal interests. The 
opinion of the Court secured obedience. The questions in- 
volved were discussed and decided in the temperate atmos- 
phere of the Court, and rarely attracted public attention. 
The public seldom pauses to listen to the quiet argument of 
counsel before the Court, however momentous it may be upon 
the decision it affects. Indeed, the principle of the decision 
itself may wait for generations before the governmental exi- 
gency arises which it proves apt and potent to control. 

The Dred Scott decision was the most important of any 
brought before the Court while Chief Justice Taney presided. 
We have elsewhere spoken of this case. It was the judicial 



THE COURT UPON WAR POWERS. 275 

indorsement of the extreme pro-slavery construction of the 
Constitution. It helped to precipitate the rebellion, and in 
directly led to the adoption of the Thirteenth, Fourteenth, 
and Fifteenth amendments to the Constitution. 

The rebellion, in 1861, found the Court, upon its conven- 
ing in December, composed of Chief Justice Taney of Mary- 
land, Justices Wayne of Georgia, Catron of Tennessee, Nelson 
of New York, Grier of Pennsylvania, and Clifford of Maine. 
There were three vacancies, one caused by the resignation of 
Justice Campbell of Louisiana, and two by the deaths of Jus- 
tices Daniel and McLean. The Court as thus composed was 
not in sympathy with the political party which had placed 
Mr. Lincoln in the presidency. Justice Wayne, the senior 
member of the bench, had been appointed by President Jack- 
son while Marshall was yet Chief Justice. Justice Catron 
was really the appointee of President Jackson. He received 
his appointment on the fourth day of March, 1837, the first 
day of Van Buren's presidency. These venerable judges 
came from states which had seceded. But they were faithful 
to the Union, and to the Constitution. 

In 1862, several cases were brought before the Court by the 
claimants of goods and vessels captured by the union gun- 
boats for violating the blockade instituted by President Lin- 
coln. The cases illustrate the magnitude of the jurisdiction 
of the Supreme Court in our system, and also the right of the 
private citizen to appeal to it for redress for wrongs done him 
by the nation even in war. 

The questions presented were the right of the government 
to establish a blockade of its own ports in a civil war, and 
the right of the President to institute such a blockade in the 
absence of any act of Congress declaring or recognizing a 
state of war. 

The Court held that Congress alone had power to declare 
a national or foreign war ; but civil war breaks out without 
any declaration ; it becomes a fact, and the President must 
recognize it. He is bound to take care that the laws be 
faithfully executed, and to suppress insurrection against the 
United States. He is bound to meet it in the shape in which 
it presents itself, without waiting for Congress to baptize it 



276 CONSTITUTIONAL HISTORY. 

with a name. He must decide whether war exists, and his 
decision binds the people and the courts. He must decide 
whether a blockade is a proper exercise of force to suppress 
the insurrection and war, and when he decides that it is, he 
has the right to institute it. The opinion of the court was 
delivered by Justice Grier, and was concurred in by Justices 
Wayne, Swayne, Miller, and Davis. The three latter jus- 
tices had been appointed by President Lincoln. Chief Justice 
Taney and Justices Catron, Nelson, and Clifford dissented. 
They were of opinion that without the previous declaration 
of war by Congress the President had no right to institute the 
blockade. 1 

The case is a remarkable one. In the greatest of civil 
wars, while it was yet raging, while the very existence of the 
government was threatened by it, the judicial department, 
upon solemn and learned argument, deliberate, and decide 
by a bare majority of one, the question whether the initial 
steps taken for the suppression of the rebellion and war by 
the executive department in advance of any action by the 
legislative department, and while the latter, not being in ses- 
sion, can take no action, are lawfully taken. 

The rebellion was fruitful of questions involving the war 
powers of the nation. The Court held that the authority to 
suppress rebellion was found in the constitutional provisions 
to carry on war and suppress insurrection ; that power to re- 
construct the governments of the seceding and subdued states 
was derived from the obligation of the United States to guar- 
antee to every state a republican form of government; 2 that 
to put down the rebellion the United States had the powers 
of a sovereign and of a belligerent ; 3 that rebels in arms 
might be treated as public enemies, their property confis- 
cated, and the offenders punished ; 4 that the ordinances of 
secession passed by the seceding states were void ; 5 that the 
judgments of the confederate courts were void except so far 
as public policy and justice otherwise require; 6 and that all 
acts done in aid of the rebellion were void. 7 

i Prize Cases, 2 Black, 635. 2 7 Wallace, 700. 

» 92 U. S. Rep. 187. Ml Wallace, 269. 

6 6 Wallace, 443. 6 111 U. S. Rep. 48. 
1 96 U. S. Rep. 193. 



THE GREAT CHIEF JUSTICE. 277 

The Court also vindicated the supremacy of the civil over 
the military power, in the loyal states, during the existence of 
the rebellion. It held that military commissions organized 
during the civil war, in a state not invaded and not engaged 
in rebellion, in which the federal courts were open and in the 
proper and unobstructed exercise of their judicial functions, 
had no jurisdiction to try, convict, or sentence for any crimi- 
nal offence, a citizen who was not a resident of a rebellious 
state, or a prisoner of war, or in the military or naval service ; 
that Congress could not invest military courts with such pow- 
ers, but that the offender was entitled under the Constitution 
to a trial by jury, a right guaranteed as well in times of war 
as in peace ; and that such a trial is only denied in cases aris- 
ing in the land and naval forces, and in the militia, in time 
of war or public danger. 1 The Court also held that a person 
who is a resident of a loyal state, where he was arrested, who 
was never a resident of a rebellious state, nor connected with 
the military or naval forces, cannot be regarded as a prisoner 
of war. 

Thus by one decision of the Court the safeguards of per- 
sonal liberty, which it was feared the great war-powers of the 
nation had subverted or invaded, were reinstated in their 
original vigor. 

Chief Justice Taney died in 1864, and was succeeded by 
Chief Justice Chase. The majority of the Court was now 
composed of the appointees of President Lincoln. If any 
change could be noticed in the tone of the Court, it was in 
the recognition and deference paid to the judgments an- 
nounced by Chief Justice Marshall. 

Time has, indeed, exalted the fame of the great Chief Jus- 
tice. We can see now that if, during the thirty-five years in 
which he presided, the rule of the narrow constructionists 
had prevailed, the Constitution would, like the Articles of 
Confederation, have proved altogether too weak and impo- 
tent a governmental system for the great nation. 

Chief Justice Marshall, in the face of the opposing con- 
struction of the parties which held power in the executive 
and legislative departments of the nation, rose to the height 

1 Ex parte Milligan, 4 Wallace, 3. 



278 CONSTITUTIONAL HISTORY. 

of the contemporary and future demands of the government, 
and expounded the Constitution with the wisdom of the sage 
and the prescience of the seer. When the rebellion broke 
out, his judgments proved authoritative for the maintenance 
of the integrity of the Union, its inherent existence as one 
nation, and its right to seize and wield its arms to subdue 
the revolt of the seceding states. It was in 1883, at the Cap- 
itol in Washington, forty-nine years after his death, that the 
national Congress and the representatives of the national bar 
assembled together and unveiled with becoming ceremonies 
the bronze statue of John Marshall. Time had made the 
more conspicuous his merits, and silenced envious and parti- 
san detraction. The keenest powers of legal criticism and 
analysis, focused upon his opinions for forty-nine years, had 
shown with what breadth and strength he had placed the 
nation upon the Constitution. The rebellion was, in some 
degree, an appeal from the judgments of Marshall to the arbit- 
rament of war. Then it was more fully disclosed how lumi- 
nous he had made the dark places in our constitutional charter 
of powers. In the light of his expositions the nation found 
authority to protect itself. 

It may be that monuments of brass and marble, as well as 
the robes sometimes worn by the priest and judge, are rem- 
nants of those objective displays by which power and preten- 
sion awed and subdued barbarians, and are therefore unfit to 
commemorate intellectual and moral worth. Be this as it 
may, the recorded opinions of Marshall are his real monu- 
ment. Bronze and marble may assert that he was great, but 
his opinions attest it. 

It is interesting to notice with what vigor and directness 
Marshall's doctrine was enunciated by the Court after the re- 
bellion had been subdued. Thus, in 1870, in Knox v. Lee, 1 
Mr. Justice Bradley said : — 

" The doctrines so long contended for, that the federal Union was 
a mere compact of states, and that the states, if they chose, might an- 
nul or disregard the acts of the national legislature, or might secede 
from the Union at their pleasure, and that the general government 
had no power to coerce them into submission to the Constitution, 
* 12 Wallace, 555. 



WAR AFFIRMS THE COURT'S VIEW. 279 

should be regarded as definitely and forever overthrown. This has 
finally been effected by the national power, as it had often been before 
by overwhelming argument. . . . The United States is not only a 
government, but it is a national government, and the only govern- 
ment in this country that has the character of nationality; it is in- 
vested with power over all the foreign relations of the country, war, 
peace, and negotiations and intercourse with other nations ; all which 
are forbidden to the state governments. It has jurisdiction over all 
those general subjects of legislation and sovereignty which affect the 
interests of the whole people equally and alike, and which require 
uniformity of regulations and laws, such as the coinage, weights and 
measures, bankruptcies, the postal system, patent and copyright 
laws, public lands, and interstate commerce : all which subjects are 
expressly or impliedly prohibited to the state governments. It has 
power to suppress insurrections, to repel invasions, to organize, arm, 
discipline into the service, the militia of the whole country. The 
President is charged with the duty, and invested with the power to 
take care that the laws be faithfully executed. The judiciary has 
jurisdiction to decide controversies between the states, and between 
their respective citizens, as well as questions of national concern ; 
and the government is clothed with power to guarantee to every 
state a republican form of government, and to protect each of them 
against invasion and domestic violence. For the purpose of carrying 
into effect these and other powers conferred, and of providing for 
the common defence and general welfare, Congress is further invested 
with the taxing power in all its forms, except that of laying duties 
upon exports, with the power to borrow money on the national credit, 
to punish crimes against the laws of the United States and of nations, 
to constitute courts, and to make all laws necessary and proper for 
carrying into execution the various powers vested in the government 
or any department or officer thereof." 

In 1883, Mr. Justice Miller said : * — 

" The proposition that the general government has not the power 
to protect the elections upon which its existence depends from vio- 
lence and force is supported by the old argument, often heard, of- 
ten repeated, and in this Court never assented to, that when a ques- 
tion of the power of Congress arises, the advocate of the power must 
be able to place his finger on words which expressly granted it. It 
destroys at one blow, in construing the Constitution of the United 
States, the doctrine universally applied to all instruments in writing, 
1 Ex parte Yarbrough, 110 U. S. Rep. 658. 



280 CONSTITUTIONAL HISTORY. 

that what is implied is as much a part of the instrument as what is 
expressed. This principle in its application to the Constitution of 
the United States, more than to almost any other writing, is a neces- 
sity, by reason of the inherent inability to put into words all deriva- 
tive powers, a difficulty which the instrument itself recognizes, by 
conferring upon Congress the authority to pass all laws necessary 
and proper for carrying into execution the powers expressly granted, 
and all other powers vested in the government or any branch of it 
by the Constitution." 

In Texas v. White, 1 Chief Justice Chase, after referring to 
the Articles of Confederation, by which the Union was de- 
clared to " be perpetual," and then to the Constitution, or- 
dained " to form a more perfect union," said : — 

" What can be indissoluble, if a perpetual union made more per- 
fect, is not ? . . . The people of each state compose a state, having 
its own government and endowed with all the functions essential 
to separate and independent existence, and without the states in 
union there could be no such political body as the United States. 
The preservation of the states and the maintenance of their govern- 
ments are as much within the care of the Constitution as the pres- 
ervation of the Union and the maintenance of the national govern- 
ment. The Constitution in all its provisions looks to an indestructi- 
ble Union composed of indestructible states." 

i 7 Wallace, 725. 



LECTURE XII. 

THE THIRTEENTH, FOURTEENTH, AND FIFTEENTH AMEND- 
MENTS, AS CONSTRUED BY THE SUPREME COURT. 

The Thirteenth, Fourteenth, and Fifteenth amendments 
mark a new era in our constitutional history. They did not 
grant universal manhood suffrage, but they led to it. They 
did constitute the deed of gift, by the United States, of 
freedom and citizenship to the slave and to the native and 
naturalized negro, and hence, either directly or indirectly, of 
every civil right, privilege, and immunity which freedom and 
citizenship confer upon the negro race. This was their pri- 
mary object. But their scope was far wider ; and its full 
extent has not yet been ascertained. The possible scope and 
effect of these amendments upon all the people of the United 
States, and upon the power of the nation, to exercise, control, 
and abridge the powers of the states in the making of the laws 
which affect the personal rights of all the people, made these 
amendments a critical turning-point in our constitutional his- 
tory. Both the nation and the states stood at the dividing 
of ways. Which way would be taken depended upon the 
construction which the Supreme Court should give to these 
amendments. No more solemn or momentous responsibility 
had devolved upon the Court since the foundation of the gov- 
ernment. Passing by the question of the liberty, citizenship, 
and civil rights of the negro race, with respect to which the 
purpose and effect of the amendments were supposed to be 
clear, the first section of the Fourteenth Amendment presented 
questions, not only fairly debatable, but of a consequence aud 
gravity scarcely possible to overestimate. 

This section provides : — 

" All persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United States, and of 



282 CONSTITUTIONAL HISTORY. 

the state wherein they reside. No state shall make or enforce any 
law which shall abridge the privileges or immunities of citizens of the 
United States ; nor shall any state deprive any person of life, liberty, 
or property without due process of law, nor deny to any person within 
its jurisdiction the equal protection of the laws." 

The fifth section provides : — 

" The Congress shall have power to enforce by appropriate legisla- 
tion the provisions of this article." 

The extent and definition of citizenship of the United States 
had been a vexed question, greatly discussed but not settled in 
the Dred Scott case. Did this amendment put all these ques- 
tions aside and make citizenship of the United States the pri- 
mary and greater citizenship, including all the less, — such as 
citizenship of a territory or the District of Columbia, — and 
make it sufficient of itself to be the source, support, and pro- 
tection of all the civil rights of the freeman ? Would these 
civil rights be and remain the privileges and immunities of the 
citizen of the United States, and, because of the greater citizen- 
ship of the nation, be above the reach of any part of the whole ? 
Were the life, liberty, and property of every person thus 
brought within the supreme protection of the supreme power, 
and hence made inviolable except by due process of law, to be 
prescribed by the appropriate legislation of Congress ? and 
hence were the states commanded not to deprive any person 
of this gift of the supreme power, except by such process of 
law ? Was Congress authorized to provide by appropriate 
legislation for the equal protection of every person, and for 
such purpose enact laws which should be paramount in every 
jurisdiction ? and therefore was it that the states were for- 
bidden to deny to any person within their respective jurisdic- 
tions such protection ? Were there to be a major and a minor 
jurisdiction, and should the minor deny no right, privilege, 
immunity, protection, form, or process of law Which the major 
jurisdiction should establish ? And if so, should the nation 
make every person secure against such denial by the state, by 
"appropriate legislation " prescribing the laws, touching all 
these matters, which laws the state, and upon its default, the 
nation, should execute everywhere ? Would it not be appro- 



CONSERVATIVE CONSTRUCTION. 283 

priate legislation to supersede every state law respecting every 
one of these matters, define by a national code their nature 
and extent, and prescribe for their protection, regulation, and 
enjoyment? Let these questions be answered in the affirma- 
tive, and the states would cease to be sovereignties, and would 
become mere territorial or geographical divisions of the nation. 
And it was easy to answer them in the affirmative. The 
Supreme Court had held with respect to the surrender of the 
fugitive slave that the constitutional provision that no law of 
any state into which the slave might escape should discharge 
him from slavery, but that he should be delivered up, was not 
only a veto of such state law, but an enabling power in Con- 
gress to make the necessary laws to give complete effect to the 
master's right to reclaim his slave. Mr. Justice Harlan, in his 
dissenting opinion in the Civil Rights cases, 1 said : — 

" I insist that the national legislature may, without transcending 
the limits of the Constitution, do for human liberty and the fundamen- 
tal rights of American citizenship what it did, with the sanction of 
this Court, for the protection of slavery and the rights of the masters 
of fugitive slaves." 

Mr. Justice Swayne, in the like opinion in the Slaughter- 
House cases, 2 said : — 

" These amendments are all consequences of the late civil war. 
The prejudices and apprehension as to the central government which 
prevailed when the Constitution was adopted were dispelled by the 
light of experience. The public mind became satisfied that there 
was less danger of tyranny in the head than of anarchy and tyranny 
in the members. Before the war ample protection was given against 
oppression by the Union, but little was given against wrong and op- 
pression by the states. That want was intended to be supplied by 
this amendment." 

In the exposition of these amendments the Supreme Court 
has in a great degree disappointed the expectation of their 
framers. Certainly, the Court has not risen to the summit 
level of the revolutionary reformers. It has refused to give 
them that construction which would draw to Congress full 
power of affirmative legislation over all the important matters 
embraced within them. It has discriminated sharply and 
1 109 U. S. 26, 53. 2 16 Wallace, 128. 



284 CONSTITUTIONAL HISTORY. 

narrowly between the civil rights, privileges, and immunities 
which are the gift of the United States to a citizen or person, 
and those which belong to him by universal and common law 
in his capacity as a freeman. It has held that Congress has 
the right by appropriate and affirmative legislation to protect 
and to confide the protection to the jurisdiction of the federal 
courts of all the rights, privileges, and immunities which are 
given by the Constitution of the United States. But it also 
has held that while the Constitution gives to the negro liberty 
and citizenship and equal civil rights, and Congress may there- 
fore affirmatively take jurisdiction of them, it did not give them 
to the white man ; he had them before the Constitution was 
made, and they therefore are not its gift, and therefore the 
Fourteenth Amendment no further affects them than to give to 
Congress power to prevent a state, not the citizens of a state, 
from denying or abridging them ; and to give to the federal 
courts power to correct upon appeal any denial of due process 
of law and the equal protection of the laws. 

The importance of the decisions of the Court will justify a 
reference to some of them. 

The first important decision was made in the Slaughter- 
House cases. 1 An act of the State of Louisiana conferred 
upon certain slaughter-house companies in the city of New 
Orleans the exclusive privilege of carrying on the business of 
slaughtering animals, and of receiving and storing the ani- 
mals for that purpose. Certain butchers brought or defended 
actions upon the ground that their privileges and immunities 
as citizens of the United States were thus abridged by the 
state, and that they were denied by the state the equal pro- 
tection of the laws, contrary to the provisions of the Four- 
teenth Amendment. 

The state court upheld the state law, and the Supreme 
Court of the United States affirmed the decision. The Su- 
preme Court held that the provision that " no state shall 
make or enforce any law which shall abridge the privileges 
and immunities of citizens of the United States " does not vest 
in the United States the power to deny to the state the right 
to make and enforce a law to abridge the privileges of a cit- 

i 16 Wallace, 36. 



CONSERVATISM OF THE COURT. 285 

izen of a state as distinguished from the privileges of a citi- 
zen of the United States. That it only secures the citizen of 
the United States from infringement by the state of such priv- 
ileges and immunities as he derives from his citizenship of the 
United States, or under its Constitution and laws, and that 
the privileges and immunities secured to a citizen of the state 
by virtue of his state citizenship he must rely upon his state 
to protect. 

It was first shown that the State of Louisiana had by virtue 
of its police power the right to pass the act unless restrained 
by the federal Constitution. The Court then proceeded to 
show that the privilege to slaughter cattle on one's own prem- 
ises, and the right to an immunity from a monopoly of the 
business in others, if any such rights exist, are rights incident 
to state and not to national citizenship, and since the con- 
stitutional inhibition is against a state infringement of the 
privileges and immunities of citizens of the United States, the 
constitutional provision does not apply. 

In elucidation of this position the Court assumed that the 
primary object of the Thirteenth, Fourteenth, and Fifteenth 
amendments was to reverse the previous national position with 
respect to slavery and to the negro race, and to give to the 
negro and his race freedom and equality of rights with the 
white man without discrimination. The Thirteenth Amend- 
ment abolished slavery and its incidents and had no other 
purpose. The Fourteenth Amendment first provides, " All 
persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United States 
and of the state in which they reside." The purpose of this 
provision was to put an end to the rule asserted in the Dred 
Scott case, that a man of African descent, whether slave or 
not, was not and could not be a citizen of a state or of the 
United States. The minority opinion in that case had as- 
serted that no man could be a citizen of the United States 
except through his citizenship of a state. This new constitu- 
tional provision puts aside both of these contentions, and de- 
clares all persons born in the United States and subject to its 
jurisdiction to be citizens of the United States, whether they 
reside in a state, territory, or other possession thereof. It 



286 CONSTITUTIONAL HISTORY. 

also gives them the added citizenship of the state in which 
they reside. Hence there now exist two kinds of citizenship, 
one state, the other national. The Court then proceeded to 
show that the citizenship provision of the Fourteenth Amend- 
ment takes nothing from the civil rights of state citizens as 
they have always existed ; and examining those rights as 
they existed at the time of the separation of the states from 
Great Britain, and under the Articles of Confederation, and 
under the Constitution previous to the Fourteenth Amend- 
ment, and as they had been declared by the repeated judg- 
ments of the courts, held that the civil rights of a citizen of a 
state embrace all those rights which are fundamental in their 
character, and belong to the citizens of all free governments, 
and include nearly every civil right which belongs to the 
freeman by virtue of his manhood and freedom, and for the 
establishment and protection of which governments are of 
right instituted among men. Further, that the new constitu- 
tional provision does not subvert in this respect the ancient 
sources of civil rights, nor transfer their derivation and security 
from the state to the nation. The Constitution has always 
contained the provision, " The citizens of each state shall be 
entitled to all privileges and immunities of citizens in the 
several states ; " but this does not create any privilege and 
immunity ; it simply declares that the citizen of one state 
when he leaves it and goes into another shall have in the lat- 
ter state all the privileges and immunities which such state 
gives to its own citizens. It does not i,n any way control the 
action of any state in giving to or withholding privileges and 
immunities from its own citizens. All these privileges, what- 
ever they are, lie outside of the scope or power of the federal 
government, except in the few special instances in which 
power is by the Constitution denied to a state, such as the pro- 
hibitions against ex post facto laws, bills of attainder, and a 
few others. 

If the recent amendment did transfer the source and pro- 
tection of all these civil rights — the inherent attributes of 
state citizenship — from the state to the nation, then Congress 
by its legislation could draw to itself a wide and illimitable 
jurisdiction over all the privileges and immunities of the citi- 



STATE GOVERNMENTS UPHELD. 287 

zens of the states, and fetter and degrade the states to a degree 
nearly approximating their governmental annihilation. No 
such purpose could be imputed to the Congress which pro- 
posed, or to the states which ratified, the amendments. 

In response to the claim that the act in question violated 
the further provision of the amendment, " Nor shall any- 
state deny to any person within its jurisdiction the equal pro- 
tection of the laws," the Court said the evil to be remedied 
by this clause grew out of the existence of laws in some of 
the states discriminating with gross injustice and hardship 
against the negroes as a class. If the states should fail to 
remove these discriminations, Congress could enforce the pro- 
vision by appropriate legislation. The Court added : " We 
doubt very much whether any action of a state not directed 
by way of discrimination against the negroes as a class, or on 
account of their race, will ever be held to come within the 
purview of this provision. " 

The opinion closed with a strong assertion of the duty of 
the court to uphold the state governments. The Court re- 
marked : — 

" We do Dot see in these amendments any purpose to destroy the 
main features of the general system. Under the pressure of all 
the excited feeling growing out of the war, our statesmen have still 
believed that the existence of the states with powers for domestic 
and local government including the regulation of civil rights — the 
rights Of persons and of property — was esseutial to the perfect work- 
ing of our complex form of government, though they have thought 
proper to impose additional limitations upon the states, and to confer 
additional power on that of the nation." 

The prevailing opinion was prepared by Mr. Justice Miller. 
Chief Justice Chase and three of the associate judges dissented. 

Mr. Justice Field prepared the dissenting opinion. In it 
he attacked the foundation of the prevailing opinion, namely, 
that the Fourteenth Amendment did not vest in the national 
government the source of citizenship, and the civil rights at- 
taching to it. He referred to the conflicting opinions which 
had previously prevailed respecting the source of citizenship, 
and the persons entitled to it, and then said : — 

" The first clause of the Fourteenth Amendment changes this whole 
subject and removes it from the region of discussion and doubt. It 



288 CONSTITUTIONAL HISTORY. 

recognizes in express terms, if it does not create, citizens of the 
United States, and it makes their citizenship dependent upon the 
place of their birth or the fact of their adoption, and not upon the 
constitution or laws of any state, or the condition of their ancestry. 
A citizen of a state is now only a citizen of the United States re- 
siding in that state. The fundamental rights, privileges, and im- 
munities which belong to him as a free man and a free citizen now 
belong to him as a citizen of the United States, and one not depen- 
dent upon his citizenship of any state. . . . They do not derive their 
existence from its legislation and cannot be destroyed by its power." 

This being true, it followed that no state could abridge or 
deny to any citizen of the United States any privilege or im- 
munity which he enjoys by virtue of his being born or natu- 
ralized in the United States and subject to its jurisdiction. 

It is obvious that the difference between the positions taken 
by the majority and the minority of the Court is great and 
fundamental. Under the opinion of the majority the amend- 
ments fail in one of the most important objects intended to 
be accomplished by their framers, namely, the subversion of 
the basis upon which the most extreme positions and claims 
of state-rights rest. It is obvious that if the civil rights of 
the citizen find their parent and protector in the nation in- 
stead of the state, the state has small standing-room in which 
to develop or nurture legal antagonism to the nation. 

Two years later, Mrs. Minor's case was decided by the 
Court. Mrs. Minor sued the registrar of voters in the election 
district in Missouri where she resided, because he refused to 
place her name upon the list of persons entitled to vote at the 
general election for presidential electors and other officers. 
She was born in the United States, was subject to its jurisdic- 
tion, and was qualified to vote, unless her sex was a disqualifi- 
cation. The Constitution of Missouri limited the right to vote 
to male citizens. Her argument was that she was a citizen 
of the United States, that the right to vote was one of the 
privileges of citizens of the United States, having the proper 
state residence ; that under the Fourteenth Amendment no 
state could abridge her privilege ; that the Constitution of the 
United States did not abridge or deny it, and therefore her 
right to vote was constitutionally perfect. 



THE RIGHT OF SUFFRAGE. 289 

The Court, Chief Justice Waite delivering its unanimous 
opinion, held that Mrs. Minor was a citizen of the United 
States ; that the Fourteenth Amendment was not necessary to 
make her a citizen ; that as one of " the people " of the United 
States, born of citizen parents under its jurisdiction, she be- 
came a citizen ; that before the amendment the right to vote 
was not necessarily one of the privileges or immunities of citi- 
zens ; that the amendment added nothing to these privileges 
and immunities, it simply added the national guarantee of pro- 
tection to such as the citizen already had. The Constitution 
does not define the privileges and immunities of citizens. That 
definition must be sought elsewhere. The Court would not 
attempt to define them, but held that suffrage was not one of 
them. There are no voters of the United States, but there 
are of the states. These existed in the several states before 
the Constitution was framed. The states prescribed their 
qualifications. The right to vote was usually conferred upon 
men, but not upon all men. Women were generally ex- 
cluded. 

The position of the Court that the Fourteenth Amendment 
did not add to the privileges and immunities of a citizen, but 
simply furnished an additional guarantee to those he already 
had, is not practically true, however it may be theoretically. 
What privileges and immunities the government confers upon 
its citizen may be inferred by considering how many he would 
enjoy, if the government had and exercised the will and power 
to take them away. 

Governments are instituted among men, says the Declara- 
tion, to secure among other things the inalienable rights of 
life, liberty, and the pursuit of happiness. The implication 
is that without government these rights are insecure, with 
proper government secure. Government, then, adds the secu- 
rity, part of which necessarily must be the privilege of their 
enjoyment and exercise under adequate protection, and im- 
munity from any governmental invasion. 

The Supreme Court held in Cooper v. Telfair, 1 that an act 
of the legislature of the State of Georgia, passed before the 
adoption of the federal Constitution, banishing the plaintiff 

1 4 Dallas, 14. 
19 



290 CONSTITUTIONAL HISTORY. 

and confiscating his property, was a valid exercise of the power 
of the state. The privilege to enjoy his liberty and property 
with immunity from governmental deprivation of them ex- 
cept upon due process of law was denied him, because there 
was then no such constitutional guarantee in the State of 
Georgia. Practically the personal rights of liberty and prop- 
erty are realized through the government. 

In 1875, Cruikshank's case 1 came before the Court. Cruik- 
shank had been indicted and convicted, with others, in the 
Circuit Court of the United States, for conspiring to deprive 
certain negroes of their right as citizens to vote, and of their 
right to enjoy certain other privileges alleged to be secured 
to them by the Constitution and laws of the United States. 
The indictment was loosely framed, and was held to be insuf- 
ficient to sustain any conviction. But the Court, in its opin- 
ion, held that the right to vote was a right derived from the 
state, and conferred by it upon its citizens, and was not held 
by virtue of citizenship of the United States ; and hence a 
conspiracy to deprive a citizen of that right was a violation 
of state privileges, not those of the United States, and hence 
no case was presented for federal jurisdiction or interference. 
If, however, the Court suggested, the defendants had been 
charged with a conspiracy to deprive the parties of their right 
to vote on account of their race or color, then the charge 
would have been one of which the United States has juris- 
diction, since the right to exemption from discrimination in 
the right of suffrage on such account comes from the United 
States. 

No rights, the Court held, can be acquired under the gov- 
ernment of the United States except such as it has authority 
to grant or secure ; all other rights are left to the protection 
of the states. The indictment, among other things, charged 
the defendants with the intent in their conspiracy to deprive 
the negroes named " of their lawful right and privilege to 
assemble peaceably together for a peaceful and lawful pur- 
pose." 

Such a right, the Court held, antedated the Constitution. 
It is found wherever civilization exists, and is therefore not 

1 92 U. S. Rep. 542. 



DISTINCTIONS AGAINST NATIONAL POWER. 291 

conferred by the Constitution. As a universal right, Con- 
gress was by the Constitution enjoined from abridging it. 
The people must look for their protection in its enjoyment to 
the states. The same was said of the right " to bear arms 
for a lawful purpose/' and of " the rights of life and personal 
liberty." The Fourteenth Amendment, by prohibiting a state 
from depriving any person of life, liberty, or property, with- 
out due process of law, adds nothing to the rights of one citi- 
zen against another. It simply adds a guarantee against any 
encroachment by the states upon these rights. The encroach- 
ment by citizens is not an encroachment by the state. The 
same is true of the provision prohibiting a state from denying 
" to any person within its jurisdiction the equal protection of 
the laws." Equality of rights is a principle of republicanism. 
The duty to protect the citizen in this respect was originally 
assumed by the states, and still remains there. 

It seemed to many of the friends of the Fourteenth Amend- 
ment, in the light of these decisions, that the amendment, 
instead of being destructive of the states' control over the 
privileges and immunities of the citizen, proved to be the 
instrumentality by which state-rights were reestablished, and 
that the power in the states and the lack of power in the 
United States were rendered clearer than ever before. 

Very slight comfort was given by Reese's case. 1 There the 
Court held that rights and immunities created by the Consti- 
tution of the United States, or dependent upon it, can be pro- 
tected by " appropriate legislation " on the part of Congress. 
Thus the Fifteenth Amendment, although it does not confer 
the right of suffrage, does confer exemption from discrimina- 
tion in the exercise of it on account of race, color, or previous 
condition of servitude. If Congress would confine its legisla- 
tion to measures to prevent such discrimination, it would be 
appropriate legislation, but as in the case under consideration 
such legislation was not so confined, it was inappropriate, and 
therefore void. 

In 1879 several cases came before the Court involving the 
Fourteenth Amendment. They are reported in 100 U. S. 
303-422. In Strauder's case a negro was indicted, tried, and 
92 U. S. Rep. 214. 



292 CONSTITUTIONAL HISTORY. 

convicted for murder in the state court of West Virginia. 
By the law of that state jurors could only be selected from 
white male citizens. Because of this exclusion of colored citi- 
zens from the jury, the defendant, in proper form before trial, 
asked to have his case removed from the state court to the 
Circuit Court of the United States, pursuant to an act of Con- 
gress providing for such removal. His request was denied by 
the state court. The Supreme Court held that it ought to 
have been granted, because the state had by its jury law dis- 
criminated against the equal right of colored men to serve upon 
juries, and therefore against the right of the defendant to have 
his jury selected without discrimination against him or them 
on account of race or color. The Fourteenth Amendment was 
intended to secure the colored man against such discrimina- 
tion, and the act of Congress providing for the removal of the 
cause was intended to afford the means, and to point out the 
method, of obtaining such security. 

In Rives' case two colored men were indicted for murder in 
the state court of Virginia. The jury law of that state does 
not discriminate against colored citizens. Nevertheless only 
white men were placed on the jury list for the court in which 
the defendants were to be tried. They asked that a jury be 
selected, one third of which should be colored men. The 
motion was denied. The Supreme Court of the United States 
held that as the law did not discriminate against them, they 
had not presented any just ground for the interposition of the 
Court. 

In Ex parte Virginia the county judge of a county in that 
state was charged by law with the duty of selecting jurors for 
the state court held in that county. He was indicted in the 
United States Circuit Court for a violation of the jury law, in 
that he had excluded from the jury citizens of color, although 
they were possessed of all the qualifications required by law ; 
that such exclusion was made by him because of their race, 
color, and previous condition of servitude. 

Having been arrested upon the indictment, he applied to 
the Supreme Court of the United States for a writ of habeas 
corpus, in order to be discharged from custody. The State 
of Virginia united in his application, alleging that she was 
unlawfully deprived of the services of one of her officers. 



THE CIVIL RIGHTS CASES. 293 

Congress had passed an act providing that if any officer 
charged with the duty of selecting jurors should exclude any 
person from such service upon account of his race, color, or 
previous condition of servitude, he should be guilty of a mis- 
demeanor. The Court held that the act of the county judge 
was the act of the state, and therefore the restriction imposed 
by the Fourteenth Amendment against the denial by the state 
to any person of the equal protection of the laws was violated 
by the act of the county judge. 

In 1875 Congress passed an act providing that all persons 
within the jurisdiction of the United States should be entitled 
to the full and equal enjoyment of the privileges of inns, pub- 
lic conve} 7 ances, and places of public amusement, subject only 
to such conditions as should apply alike to persons of every 
race and color, and providing for the punishment of violations 
of the law. 

The Supreme Court of the United States in the Civil 
Rights cases 2 held this act to be unconstitutional ; that the 
denial of equal accommodations and privileges in inns, public 
conveyances, and places of amusement is no badge of slavery 
or involuntary servitude, and therefore is not within the 
meaning of the Thirteenth Amendment. That the Four- 
teenth Amendment is prohibitory upon the states and not 
upon individuals, and that the power of Congress to enforce 
the amendment by appropriate legislation does not extend 
to legislation prescribing the rights of the parties themselves 
between each other, but only to the correction and prohibition 
of legislation and action on the part of the state, abridging or 
denying the equal protection of such laws as the state may 
make for any of its people. The state had made no law 
denying to colored men equal accommodations and privileges 
with white men in inns, public conveyances, or places of 
amusement, and therefore the state had not done these negroes 
wrong ; it had not denied them equal protection of the laws. 
The right to equal accommodations and privileges in these 
places is not any privilege or immunity given by the Consti- 
tution to citizens of the United States, and therefore is not 
within the power of the United States to enforce by " appro- 

i 109 U. S. 3. 



294 CONSTITUTIONAL HISTORY. 

priate legislation." If the state should assume to make a law 
denying the black man any privileges allowed to the white 
man, it would be appropriate legislation for Congress to over- 
ride, nullify, or vacate such a discriminating law. If the 
state courts should enforce state laws which denied equal pro- 
tection to any person, then the Supreme Court by the exer- 
cise of its appellate jurisdiction might correct the error. 

Yarborough's case x and Waddell's case 2 point out the dis- 
tinction between the power of Congress to legislate repecting 
the general and fundamental rights of the citizen or individ- 
ual and those rights which have their exclusive origin under 
the Constitution or laws of the United States. In the one 
case Congress may only correct or nullify the wrongful law 
or action of the state, in the other it may pass the laws need- 
ful to protect the right. 

In Spier's case, in 1887, 3 a question of the utmost impor- 
tance was presented to the Court, which, however, it did not 
find it necessary to decide. It was contended in argument 
that the first ten amendments of the Constitution do confer 
privileges and immunities upon citizens of the United States, 
and therefore no state can abridge any of them ; that al- 
though these ten amendments were originally only restraints 
upon the federal power, yet inasmuch as they declare and 
recognize rights of persons, these rights are theirs as citizens 
of the United States, and now are made secure by the Four- 
teenth Amendment against any denial or abridgment by the 
states. The first ten amendments, it was contended, confer 
privileges and immunities upon the people and citizens of the 
United States. Thus, the right to be secure in their persons, 
houses, papers, and effects against unreasonable search and 
seizure ; the immunity from the quartering of soldiers in their 
houses, from self-accusation, from trial for crime without in- 
dictment, from a second trial for the same offence, from ex- 
cessive bail and fines, from cruel and unusual punishments, 
from taking of private property for public use without just 
compensation. True, these provisions are also inserted in 
most of the state constitutions, but if they are national securi- 
ties to the national citizen, the federal court must, it was 

1 110 CJ. S. 651. 2 112U. S. 76. 8 123U. S. 131. 



NATIONAL PRIVILEGES FEW. 295 

urged, review the judgment of the state court denying the 
protection of any one of the provisions. 

The First Amendment confers these important privileges 
and immunities : " Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise 
thereof, or abridging the freedom of speech or of the press, or 
the right of the people peaceably to assemble, and to petition 
to the government for a redress of grievances." But this ac- 
cording to the Court is no inhibition of state action, with the 
single exception of the right to petition the government for a 
redress of grievances ; the latter is an attribute of national 
citizenship. 

Many of the states passed laws prohibiting the freedom of 
speech and of the press respecting slavery. President Jack- 
son recommended Congress to pass a law to prevent the cir- 
culation through the mails of papers and publications hostile 
to slavery, but Congress was restrained by this constitutional 
provision, Many members of Congress, however, contended 
that as the state laws in violation of the freedom of the press 
were not prohibited by the Constitution, Congress had power 
to pass such laws as would give effect to the state laws. The 
states passed laws prohibiting the free exercise of religious 
worship by the slaves, and their peaceable assemblage even 
for worship except under restraints. 

The Supreme Court in 1844 held in Permoli's case 1 that 
" the Constitution makes no provision for protecting the citi- 
zens of the respective states in their religious liberties ; this is 
left to the state constitutions and laws; nor is there any in- 
hibition imposed by the Constitution of the United States in 
this respect on the states." It can scarcely be doubted that 
this defect in the national Constitution was intended to be 
corrected, but such is not the doctrine of the Court. 

The first ten amendments restricted the national power to 
abridge or deny any privilege or immunity specified in them. 
To some extent, therefore, these amendments were equivalent 
to a grant of such privileges and immunities ; an imperfect 
grant, it is true, because it was only a grant of national non- 
interference ; the power in the states to invade them remained. 

1 3 Howard, 589. 



296 CONSTITUTIONAL HISTORY. 

By construing the Fourteenth Amendment so as to impose the 
same restriction upon the states as previously existed upon 
the nation, the grant would be made complete. Of course 
two narrow decisions can be made — and the Supreme Court 
has practically made them : First, Non-interference by the 
nation is no grant of anything ; second, The provision of the 
Fourteenth Amendment inhibiting a state from abridging the 
privileges and immunities of citizens of the United States 
means no more with respect to the privileges and immunities 
mentioned in the first ten amendments than that the states 
shall not by law abridge the obligation of the United States 
to let them alone. Obviously the true meaning is that the 
states shall be as powerless as the United States to deny or 
abridge them. 

The Spies case contains an intimation that the debate upon 
the subject is not yet closed. Manifestly it ought to be kept 
open until it can be more clearly seen whether it is really 
true that the privileges and immunities of the white man, 
which the nation is forbidden by the Constitution to abridge, 
may, notwithstanding the Fourteenth Amendment, be abridged 
by the state. 

Is it true that national citizenship of itself has no attributes 
of any practical value ? Is there nothing more of it than the 
paltry show of theoretical advantages enumerated in the pre- 
vailing opinion in the Slaughter-House cases ? 

Is it true that the higher the source and the more inaliena- 
ble the rights of man, the less they are within the protection 
afforded by national citizenship and the national Constitu- 
tion, and the more they are exposed to invasion by the state ? 

One provision of the Fourteenth Amendment is of far- 
reaching effect. If a state by its law deprives " any person of 
life, liberty, or property without due process of law," the wrong 
can be corrected by the Supreme Court of the United States, 
upon appeal from the judgment of the state court enforcing 
the state law. u Due process of law" is not defined in the 
Constitution. It means the same as "law of the land" in 
Magna Charta. This process in the states is regulated by the 
laws of the state. 1 But unless the state regulates it to con- 
1 Walker v. Sauvinet, 92 U. S. 91. 



DUE PROCESS OF LAW. 297 

form to its ancient meaning, it is not " due process," but a 
perversion thereof. 1 

Due process of law implies that the person who is sought to 
be deprived of his life, liberty, or property shall have an op- 
portunity to dispute the charge or claim made against him, 
and the allegations upon which it is founded, and that the 
material matters disputed shall be fairly inquired of, and the 
case decided as the law and its merits require. To accomplish 
this there must be a court or tribunal, regular allegations, op- 
portunity to answer, and a trial according to some settled 
mode of judicial proceeding. 

If the state provides due process of law, an erroneous de- 
cision of the state court in the administration of justice under 
it does not violate the Fourteenth Amendment. There must 
be such a defect in the state law as deprives the trial, or pro- 
ceeding, of the requisites of due process of law. 2 So construed, 
the amendment, however, gives to the Supreme Court an en- 
larged jurisdiction over the administration of justice in the 
states, respecting life, liberty, and property. 

This jurisdiction, taken in connection with the liberal pro- 
visions of the . acts of Congress providing for the removal of 
causes from the state courts to the courts of the United States, 
in cases arising under the Constitution or laws of the United 
States, secures to the citizen, in a very high degree, national 
protection against the injustice of a state. It also tends to 
place the state above the desire to commit that injustice which 
the federal power may correct. Thus the Fourteenth Amend- 
ment does not destroy state rights and powers. It secures 
them. If they deny equality of rights, or due process of law, 
it corrects them. It supersedes them, if necessary, for the pro- 
tection of rights conferred by the Constitution upon the negro ; 
or, if necessary, for the freedom and fairness of the election of 
representatives in Congress. It interferes for the protection 
of officers acting under federal authority. 

The national and state systems remain intact, parts of an 

undivided whole, the greater not encroaching upon the less, 

but supervising its action, in cases where the horizon of the 

state ought to be as broad as that of the nation. 

1 Murray's Lessee v. Hoboken Land Co. 18 How. 272. 2 118 U. S. 194. 



298 CONSTITUTIONAL HISTORY. 

The seceding states have found in the Supreme Court their 
champion and preserver. The judgment of the people, ma- 
tured by time and modified as the generation which partici- 
pated in the rebellion passes away, indorses the action of the 
Court. The Court which in the earlier years of the govern- 
ment developed the Constitution, and made it adequate to the 
existence and maintenance of the nation in its struggle against 
state opposition and supremacy, in the later years has pre- 
served the states against the superior strength and undue su- 
premacy of the nation. First, it made a place for the nation, 
and second, it saved the places of the states. 

Chief Justice Waite, in Cruikshank's case, reiterated the 
old doctrine, which it is probable will never be shaken : — 

" The government of the United States is to some extent a govern- 
ment of the states in their political capacity. It is also for certain 
purposes a government of the people. Its powers are limited in 
number but not in degree. Within the scope of its powers as enu- 
merated and defined, it is supreme and above the states ; but beyond it 
has no existence. ... It can neither grant nor secure to its citizens 
any right or privilege not expressly or by implication placed under its 
jurisdiction. . . . All that are not so granted or secured are left 
under the protection of the states." 

The language of the Court in New York v. Miln, 1 has been 
often repeated. 

" A state has the same undeniable and unlimited jurisdiction over 
all persons and things within its territorial limits as any foreign nation, 
where that jurisdiction is not surrendered or restrained by the Consti- 
tution of the United States ; that by virtue of this, it is not only the 
right but the bounden and solemn duty of a state to advance the safety, 
happiness, and prosperity of its people, and to provide for its general 
welfare by any and every act of legislation which it may deem to be 
conducive to these ends, when the power over the particular subject 
or the manner of its exercise is not surrendered or restrained by the 
Constitution and laws of the United States." 

With a brief reference to a few of the provisions of the 
Constitution which have elicited important expositions of the 
powers of the nation and the states, the subject of the in- 
fluence of the Court upon our constitutional system may be 
dismissed. 

i 11 Peters, 139. 



REGULATION OF COMMERCE. 299 

First in importance may be mentioned the power in Con- 
gress " to regulate commerce with foreign nations and among 
the several states." From these few words a body of laws 
has been developed by the decisions of the Court, vitally af- 
fecting commerce. Commerce includes navigation, water and 
land transportation of property and passengers, intercourse, 
and necessarily the instruments of traffic such as ships and 
railroads, and telegraphic lines on post roads. Whatever 
affects the regulation of commerce with foreign nations or 
among the states is committed to Congress. Whatever ob- 
structs, taxes, or burdens such commerce, or discriminates in 
its rates or charges, is to some extent a regulation, and thus 
within the control of Congress. The power is a national one, 
and the states have no voice or power in the matter. They 
can regulate commerce which begins in a state and never 
passes its boundary, but all commerce which passes state lines 
is within the exclusive control of Congress. Unless Congress 
otherwise declares, all interstate commerce is free. Many 
cases have arisen in which the legislation of states has been 
declared void, because either a direct or indirect encroach- 
ment upon the exclusive power of Congress. The decisions 
are not entirely reconcilable with each other ; this, because 
the judges in these as in other cases cannot always agree 
respecting the application of the Constitution to peculiar 
cases, and because in a body of nine judges the majority of 
the quorum which controls the decision to-day may have been 
the dissenting minority in the decision which was pronounced 
yesterday by a full bench. Side by side with the doctrine of 
the exclusive power in Congress to regulate commerce have 
grown up two exceptions to the power or qualifications of it : 
first, where the particular matter of commercial regulation is 
from its nature of local operation ; such as the improvement of 
harbors, their pilotage, the erection of bridges, wharves, piers, 
and docks, the establishment of beacons and buoys, Congress 
allows the state to act, until it takes the matter in hand it- 
self ; the local authorities better understand the local needs 
and can better provide for them. This exception comes from 
the grace of Congress. The second is, the state has a police 
power which is one of its reserved powers and rights, and is 



300 CONSTITUTIONAL HISTORY. 

therefore superior to congressional invasion. This is a power 
to guard the health, safety, good order, and morals of the 
community, and to afford protection to property. The full 
discussion of this important topic with its exceptions would 
require a treatise of considerable magnitude. 

The practical effect is to establish free trade between the 
states under leave of the nation, with local helps and police 
supervision on the part of every state. 

Next in importance is the provision in the Constitution 
that no state shall make any law " impairing the obligation of 
contracts." More attempts have been made by the states to 
evade this provision than any other — perhaps than all others 
in the Constitution. Under the broad interpretation given 
to it by the Court, it has proved to be a mighty bulwark 
against public and private plunder. Upon the binding obli- 
gations of contracts repose the rewards of labor, the title to 
property, and general public confidence. The temptation to 
incur debt is generally present ; to repudiate it when its bur- 
den is oppressive is a common form of dishonesty. The 
laborers who worked eleven hours in the vineyard wanted to 
repudiate their contract. They " murmured against the good 
man of the house, saying, these last^have worked but one hour, 
and thou hast made them equal unto us who have borne the 
burden and heat of the day. But he answered one of them 
and said, Friend, I do thee no wrong, didst thou not agree 
with me for a penny ? " 

The state courts have always professed respect for the pro- 
vision, but have frequently attempted to relax its rigor, or 
evade or deny its application. The Supreme Court has gone 
to the utmost limit of permissible construction to uphold it, 
and thus has done an immense labor in enforcing common 
honesty. It has been baffled, however, in its attempts to pre- 
vent state repudiation by the non-suability of a state by a 
private party. Universal suffrage is not yet sufficiently sen- 
sitive in honor to hold a state to the full discharge of a public 
debt which is so oppressive that the government cannot dis- 
guise its burden, or conceal its exactions from the voter. An 
amendment to the Constitution in this respect is suggested in 
a previous lecture. 



UNITED STATES NOTES A LEGAL TENDER. 301 

The Constitution denies to a state the power to coin money, 
to emit bills of credit, to make anything but gold and silver 
coin a tender in payment of debts. This was an additional 
check against state dishonesty. The State of Missouri issued 
bills of credit in 1821. The Supreme Court held them to be 
void, and thus, it is curious to notice, enabled the state to 
escape from the obligation of her contract to redeem them. 
But the particular evil was more than compensated by the 
general good. 

No power is expressly conferred by the Constitution upon 
the nation to make anything but gold and silver a legal tender. 
Nevertheless, the Supreme Court has held that the power ex- 
ists ; that Congress has the power to borrow money, and there- 
fore the power to issue its notes in the form most convenient 
and useful ; that Congress is not forbidden by the Constitu- 
tion to make the notes a legal tender, and does have the 
power to make such enactments respecting them as will make 
them most conducive to the public welfare ; that its judgment 
that the quality of legal tender impressed upon these notes is 
most conducive to the public welfare is its judgment upon a 
political question, and thus within its discretion, and therefore 
permissible. 

Something is said by the Court to the effect that the power 
to impress notes with the quality of legal tender is a power 
universally understood to belong to sovereignty, and that Con- 
gress is the legislature of a sovereign nation. These remarks 
were not essential to the demonstration. That is complete 
upon the premises assumed, without reference to sovereign 
powers. Nevertheless, much dissent has been expressed with 
respect to this reference to the powers of sovereignty. The 
limited number of powers which the nation possesses are sov- 
ereign. The delegated powers are complete. If the nation 
has the power to declare its notes a legal tender, that power 
is by the Constitution a sovereign power because there is no 
higher power residing elsewhere. There is no declaration by 
the Court that, in addition to the powers conferred by the 
Constitution, the nation also has other powers as the attri- 
butes of its sovereignty. The Court has always disclaimed 
the existence of such powers, and probably always will. 



302 CONSTITUTIONAL HISTORY. 

The Court has uniformly held that the decision of the exec- 
utive and legislative departments, with reference to the polit- 
ical matters committed to their authority and discretion, will 
not be reviewed by the Court. This negative decision is prac- 
tically a decision upholding the action of these departments, 
and thus as decisive as if the Court actually reviewed and 
affirmed their action. The question is put at rest. 

In matters of taxation both nation and state are held to 
have concurrent powers, except with regard to imports and 
foreign and interstate commerce, but neither government will 
tax a governmental instrumentality of the other ; for the 
power to tax is the power to destroy by increasing the weight 
of the tax. 

The United States will not punish crimes except those 
declared by its own statutes ; this, for the reason that it can 
make no law except within the legislative powers granted to 
it, and hence it can have no unwritten laws, and therefore 
none to be violated. Under the recent amendments the Su- 
preme Court will allow, however, a criminal case to be re- 
moved from a state to a federal court, when the defence is a 
justification under the laws of the United States ; this, be- 
cause the United States will protect whatever rights it con- 
fers. 

The more our constitutional history is examined, the stronger 
will be the conviction that the Supreme Court has been indis- 
pensable to the success of our federal system of government. 



LECTURE XIII. 

SOME OF THE CAUSES OF THE STABILITY AND SUCCESS 
OF OUR DUAL SYSTEM OF GOVERNMENT. 

We assume that our system of cooperative national and 
state governments is thus far a practical success, and that it 
gives promise of long continuance. It will be useful, therefore, 
to ascertain some of the principal features which give it sta- 
bility and excellence. How is it that this republican govern- 
ment is strong enough to perpetuate itself? And why is it 
that the power and means necessary to maintain it do not 
oppress the people or restrict their liberties ? The questions 
are comprehensive, and any answer must be far from com- 
plete. It would be easy for the pessimist to answer and say 
that the government is neither stable nor excellent, and that 
it is gradually advancing toward tyranny and oppression, and 
must sooner or later be overthrown by the rebellion of the 
people against its usurped authority, or be preserved by the 
strong hand of military and police power. We reject such 
gloomy predictions, confessing, however, that the croaker of 
evil often suggests dangers which prudence should take care 
to remove or provide against, but believing that the necessary 
prudence exists. 

Government is a necessity. It is necessary to regulate the 
association of men with each other, to prevent the invasion of 
their liberties and rights, and to promote that good which 
society is willing to do for its members. 

Government in its simplest and best form is the elaboration 
and enforcement of those natural laws of reason and justice 
which every man in some degree instinctively recognizes as 
due from him to his associates, and from them to himself. 
To secure uniform and universal obedience to these laws, the 
power to declare and enforce them must be lodged somewhere. 
Convenience and better service are promoted by the division 



304 CONSTITUTIONAL HISTORY. 

of labor and its assignment according to special aptitudes. 
The founders of government usually have some special apti- 
tudes for it. It is a practical matter. The right of this or 
that man or body of men to bear rule over the whole is not 
much debated in the beginning ; it usually comes about in a 
very practical way ; the philosopher examines and discusses 
it later, and deduces his precepts of political science ; these 
are interesting and useful, but rarely become weighty until 
the people become wiser and greater, and seek to reform 
the methods which practical governors established. 

Individuals pass away, but the people remain ; and if they 
advance in civilization the government -will conform them to 
its genius, or they will conform it to theirs ; that is to say, in 
the long course of time. But meantime great injustice may 
be done, sometimes by the government and sometimes by the 
people. Governments have imposed a vast amount of suffer- 
ing upon the people. 

The possession of power is too often followed by its abuse. 
This abuse must result in the abasement of the people, or 
their resistance to the government itself, unless, indeed, the 
people possess the power to reform the government, and in- 
telligence and unity enough to exercise such power aright. 

If reason and justice always presided over the exercise of 
power, governments would be simple and probably very much 
alike. But the ignorance and weakness of the many invite 
the direction of the few and submit to it. Successful ambi- 
tion gains power, and then seeks to perpetuate it. It ad- 
vances the false pretext of hereditary and divine right to it, 
and thus has imposed for ages upon the minds of men. " To 
contest the power of kings is to dispute the power of God," 
said James I., and statesmen, bishops, and philosophers said 
Amen ! Wise and great nations still tolerate the imposition 
of hereditary right, and uphold it in the interest of established 
peace, security, and good order. Theoretically, it would seem 
that good government might be easily established, since every 
one ought to desire it, and contribute to it; but selfishness, 
ignorance, and passion are constant disturbing forces, and 
what is simple in theory is difficult in practice. Strictly 
speaking the state can confer no rights ; it should recognize 



PRIMARY PURPOSE OF GOVERNMENT. 305 

and protect them. Every man is born with the rights of a 
human being; he lives among his fellow-men, and hence the 
state measures his rights with respect to the like rights of 
others. Every man has the right, equal with the right of 
every other man, to make the best possible use of his powers 
and opportunities to promote his own welfare and happiness, 
within the limits of non-intrusion upon the like right of 
others. The state should protect this right, charging only 
the expense, in the form of taxation, necessary to do it. 

If the state confers privileges and immunities upon some of 
its people at the expense of the rest, the state is unjust. But 
rights imply and impose duties. The principal civil duty is 
that every man should enjoy his own rights without intrusion 
upon the rights of another ; in other words, he should do him 
no wrong. Government should be the agency by which and 
through which the powers of all the members of the state are 
united to protect these rights and enjoin this duty with re- 
spect to every member of the state. If wisely constituted 
and administered, the individual gains immensely. He sur- 
renders no right or liberty which he ought to retain, and he 
gains the protection of the organized power of all the others. 

Government completes its primary purpose when it protects 
the rights and liberties of its people, and prevents or punishes 
wrong-doing by any one to the injury of any other. The in- 
dividual members of the state are thus left to do the best they 
can for themselves. But many things are proper to be done, 
and can only be effectively done by cooperation. The ten- 
dency of the people in modern states is to make the state the 
master and compeller of the proper cooperation to accomplish 
purposes supposed to be for the common welfare. Education, 
the public health, the protection of children, the care of the 
poor and the insane, the construction of roads and bridges, 
seem to be proper objects of governmental concern and direc- 
tion. But with few exceptions like those above indicated, the 
theory that the state is wiser than the people, and therefore 
ought to act as their parent or guardian, is a dangerous one, 
and in practice results in their abasement, and in governmental 
abuse and tyranny. It naturally results in the extension of 
privileges and benefits to the few at the expense of the many ; 

20 



306 CONSTITUTIONAL HISTORY. 

and the practice once begun is the parent of inveterate and 
multiplying abuses. The people should never ask the state to 
help them in any measures where they can help themselves, 
and it is better to forego a supposed benefit than to initiate 
a measure which concedes to the state a new pretext to abuse 
its power. 

The framers of our national Constitution were wisely jeal- 
ous of the tendencies of power to abuse and oppression. The 
people of that day debated long and earnestly over the ques- 
tion whether it was not better to bear the ills of anarchy than 
incur the dangers of centralized power. Good government 
they recognized to be the greatest of human blessings, but they 
greatly feared that in seeking to make a good one, they would 
really incur the risk of getting a very bad one. 

Government must be clothed with authority ; the people 
desire liberty ; authority should protect liberty ; but authority 
in the government is the surrender by the people of some con- 
trol over their liberty. Society is always liable to the strug- 
gle between liberty and authority : the tendency of liberty is 
toward license ; the tendency of authority toward despotism. 
To allot to each its proper measure, so that the scale shall be 
and remain justly and evenly poised, is the problem political 
science seeks to solve. It is a science in the interests of peace 
and the common welfare. Revolutions are the usual read just- 
ers of the gross disproportions in the shares allotted to liberty 
on the one hand, and to government on the other, or captured 
by the one from the other. But when the sword is thrown 
into the balance, the scale usually preponderates on the side 
of the stronger ; if with authority, liberty is crushed ; if with 
liberty, anarchy reigns, until weakened by its own excesses 
and divisions authority strides in and saves the people from 
themselves by crushing down liberty once more. 

There is a frightful array of historical evidence against the 
peace and permanency of republics. It is a wearisome story 
of the excesses of liberty, the tyranny of majorities, the insur- 
rection of minorities, the struggle for power, the cruelty of 
vengeance, the mob unchained — and then the dictator, the 
man on horseback, or subjection to foreign power. 

Men cannot retain their liberties unless they can be pro- 



LIBERTY AND AUTHORITY. 307 

tected or protect themselves from the consequences of their 
own passions. Human passions cannot be removed : they 
may be governed. In moments of peace and calmness, it may 
be possible to erect a shelter from their storm — a bulwark 
against their violence. 

Good citizens, under a sense of outrage, not unfrequently 
resort to violence. The first inspiration of the mob usually 
comes from generous impulse, but its heat warps its purpose, 
and turns it into vicious and violent courses. It destroys it- 
self in its effort to destroy others ; or, weakened by its disor- 
der, becomes the easy victim of authority. 

The simple and successful governments in the states gave 
the framers of our Constitution great encouragement. Local 
self-governments were successfully established. But so long 
as they remained divided in counsel and action, they lacked 
the strength necessary for their safety, and the harmony es- 
sential to the general welfare. " Join, or die," had been the 
watchword which led to the union against Great Britain. " A 
more perfect union" was the object of the framers of the Con- 
stitution. The greatest obstacle to the framing of a more per- 
fect union was state sovereignty, or the jealous care with which 
local self-government was cherished. The greater the power 
of the national government, the greater was the need of care 
to guard the liberties of the people and the rights of the states. 

It was not necessary to construct the whole system of gov- 
ernment from its foundations. Local self-governments were 
already established, and were apparently adequate for local 
purposes. They constituted the foundations upon which the 
national system was to be erected, and models to aid in shap- 
ing the new structure. Nevertheless, the hostile and disturb- 
ing forces in society and among the states had to be regulated 
and balanced. The counterpoises between liberty and author- 
ity had to be adjusted, so that however violent the oscillations, 
they must always tend toward repose in equilibrium. 

Two propositions of Mr. Madison, as stated by him in the 
fifty-first number of " The Federalist," — first, the government 
must control the governed ; second, it must be obliged to con- 
trol itself, — touch or reveal the secret of all proper govern- 
ment. In order to control the governed the government must 



308 CONSTITUTIONAL HISTORY. 

possess all the powers necessary for the purpose. It must be 
able to maintain and secure its own existence, and must be 
able to compel obedience. " A government," says Mr. Ham- 
ilton, " ought to contain in itself every power requisite to the 
full accomplishment of the objects committed to its care, and 
to the complete execution of the trusts for which it is respon- 
sible ; free from every other control but a regard to the pub- 
lic good and to the sense of the people." 1 

The framers of the Constitution recognized the principle 
that whatever powers should be conferred upon the United 
States must be full and complete, otherwise there might be 
such a lack of unity, energy, and authority as would in some 
important crisis prove fatal. The powers conferred by our 
Constitution are few and soon counted, but they are complete 
in themselves and ample for the purpose intended. These 
powers are self-executing in some cases and need no further 
laws ; in other cases the laws regulate and guard their exercise ; 
in some cases, however, the powers may be held in abeyance 
by the failure of the laws to provide for their exercise ; but 
the laws cannot abrogate the powers themselves; however 
long in abeyance, a future legislature may provide for their 
exercise. Power should be exercised in conformity to law, 
but where the exercise of the power is defined and regulated 
by the Constitution, no further law is necessary. 

Starting with the assumption that whenever a power is con- 
ferred by the Constitution to do anything, every power neces- 
sary to do that thing is conferred, — that is, supreme power 
with respect to that thing, — the practical and important ob- 
ject to be attained is to protect the people from the abuse of 
this power. Jefferson, and most of the leaders of the party 
which he founded, did not believe it was practicable to protect 
them, and they therefore the more readily denied that the 
Constitution conferred such supreme powers ; they asserted 
that the powers conferred were limited in their scope, and 
could only be exercised to the extent that the law permitted. 
Thus the safety of the people consisted, first, in making the 
fewest laws possible ; and, second, in carefully restraining by 
the laws themselves the power to be employed under them. 
1 Federalist, No. 31. 



SEPARATION OF POWERS.. 309 

The policy suggested was cautious and in most cases would be 
wise ; but it is obvious that if the government does not have 
the full right to execute its delegated powers, a residuum of 
power exists elsewhere, and that residuum may prove to be 
large and strong enough to nullify the power of the govern- 
ment, and leave it in the same condition as if it had no power 
at all. 

While it is said that this is a government by the people, the 
statement is only partly true. The people do not exercise the 
powers of the government ; they elect officers to do this. The 
people in voting for persons to fill the elective offices do not 
thereby exercise any of the functions of officers. They do in- 
deed exercise that function of government which consists in 
choosing officers, but every other function they commit to the 
officers chosen. During their terms of office the people have 
no direct control over the officers. In a representative gov- 
ernment of vast extent it is difficult to provide otherwise. 

An examination of our system of government in the light of 
its practical operation will bring to view the following securi- 
ties for the good conduct of those intrusted with power, and 
safegards against the encroachment of authority upon liberty : 

First. There is not sufficient power lodged in any one man 
or body of men to enable him or them to oppress the people. 
This result is attained by the division of the great powers of 
government, namely, the executive, the legislative, and the 
judicial, among separate groups of officials. If these were all 
vested in one man or body of men, then such man or body of 
men might usurp, if they should not possess, all the powers 
necessary to oppress the people. But when they are separated, 
so that those belonging to one group are given to one class of 
officers, and those belonging to another group to another class, 
and those of the remaining group to a third class, then the 
totality of the powers of the government is so scattered or dis- 
tributed that too few of them unite in any one man or body 
of men to enable him or them to tyrannize over the people. 

Second. The powers which are the most dangerous if 
abused, or most liable to abuse, are committed to officers with 
short terms of office. The interest of the people is stimulated 
and refreshed by the frequent return to them of the duty and 



310 CONSTITUTIONAL HISTORY. 

privilege of election ; the conduct of the officers is the more 
carefully watched by those who desire to eject them, or to 
obtain their positions. The officer will have neither the power 
nor length of service sufficient to enable him to oppress the 
people, but will naturally be ambitious to render useful ser- 
vice. 

Third. The national powers are distinctly separated from 
those of the state. This prevents control of the state govern- 
ments by the nation, and deprives the nation of power to op- 
press the states, or make any state the instrument of oppres- 
sion. The moment the nation passes out of its appointed 
sphere of action, it is utterly powerless. If it attempts to 
usurp power in a state it is a wrong-doer, and is instantly 
treated as such. Besides, power is usually so decentralized in 
the states that it has no single official master. The law is the 
superior. The governor is chosen by the people, and his du- 
ties are prescribed by law. The same is true of the inferior 
officers. They are chosen by the people of their districts, and 
the governor is not their commanding officer, nor do they look 
to him to prescribe their duties. They are the servants of 
the law, and if they fail in their duties the law prescribes the 
penalties, which the courts may enforce. These inferior offi- 
cers owe their positions to the people, and naturally recognize 
their responsibility to the people and to the law. It follows 
that in the states, official power cannot be centralized, and 
therefore cannot well be made the servant of any one master. 
If the President were to seek for it with the view to its con- 
trol, it would forever elude his search. Even if the governor 
of the state should seek to grasp it, the system of decentrali- 
zation would baffle him. 

The national power, limited to national purposes, is cen- 
tralized, and safely and properly so. The President is the 
only executive officer elected by the people. All the others 
are either directly or indirectly appointed by him. The na- 
tion must be united and harmonious in executive action and 
complete in its powers, both as respects foreign nations and its 
home affairs. It would be unwise and impracticable to at- 
tempt to elect by the people of the nation ambassadors to 
foreign governments : they represent the government as ad- 



SEPARATION OF POWERS. 311 

ministered, and must be subject to its direction, and there- 
fore to its appointment and removal. It would be equally 
impracticable and unwise to elect by the people such officers 
as postmasters and revenue collectors. They could not well 
be elected by the people at large ; and if they should be 
elected by the people of districts, they would feel more re- 
sponsibility to such people than to the administration, and 
hence might thwart the national scheme. The same may be 
said of the other officers in the civil service of the nation. 
The centralization of national power secures unity, harmony, 
and efficiency at home and abroad. 

The possible danger of this centralized national system is 
removed or guarded against by the separation of the national 
from the state powers. It cannot be dangerous where it can- 
not extend. The President of the United States has no offi- 
cial superiority over the governor of a state. Congress can- 
not by law require a governor to do anything. The Supreme 
Court has decided that Congress may request but not com- 
mand the governor to comply with the constitutional pro- 
vision for the surrender of the criminal who flees from the 
state where he committed crime into another state. 1 Thus, 
the greater part of the power of the nation resides in the 
states, and cannot be organized or controlled at all by the 
nation, except in cases of invasion, insurrection, or rebellion, 
and then only for the purpose of keeping the peace. It is 
under the direction of the governors of the states only for the 
like purpose. The law and the courts define and declare the 
duties and obligations of citizens and of inferior executive 
officers. Public officers are powerless unless the law is on 
their side, and they are liable to be haled before the courts for 
an abuse of their official trust, or for action in excess of it. 

Fourth. These separate powers committed to separate offi- 
cers are so coordinated that the proper action of every de- 
partment is usually necessary to the successful working of the 
government. Every department, therefore, is stimulated to 
perform its assigned duty, so that no fault may attach to it. 
Every department is in some sense a detective of the defaults 
or abuses of the others. 

1 Kentucky v. Dennison, 24 How. 66. 



312 CONSTITUTIONAL HISTORY. 

Fifth. The power of amendment of the Constitution exists, 
properly guarded to prevent hasty use, but adequate to the 
correction of real defects or abuses. 

Sixth. The participation of the people in the government, 
the publicity of its action, freedom of discussion, frequent 
elections, manhood suffrage, the virtue and intelligence of the 
people, their love of liberty and justice, their love of their 
country and its institutions, are constant forces tending not 
only to strengthen and perpetuate the government, but to 
bring it and hold it to a very high degree of excellence. 
This general classification of the features of our system, tend- 
ing towards stability and excellence, will admit of extended 
specialization and illustration. Secondary cooperating factors 
are numerous. We can only glance hastily at the most im- 
portant. 

The national legislature has its limited range of legislative 
powers ; the state legislatures have the rest. Thirty-eight 
state legislatures keep watch and ward against national en- 
croachment. The Supreme Court of the United States is the 
tribunal which nullifies the action of either national or state 
legislature infringing upon the other. As each legislature 
has a defined scope of powers which the other must not use 
or invade, the national and state legislatures, instead of cooper- 
ating to oppress the people, may be relied upon to watch each 
other, and to expose and counteract any exercise of power 
which is dangerous to the people or their liberties. 

Again, the legislatures do not enforce any of the laws they 
make. That function belongs to the other departments. 
There is often a display of power and consequence in the 
execution of a law which does not attach to its enactment. 
The legislatures give to the executive officers that consequence 
and power ; they do not retain it themselves. Their jealousy 
of the power they confer tends to make them cautious in con- 
ferring it. It is less probable that the legislature will make 
a bad law for the other departments to enforce, than it would 
if it enforced it itself. It is more inclined to impose limits 
upon the action of the other departments than to grant ex- 
tensions of power. Each department, possessing its own 
group of powers, instead of combining with the other depart- 



ONE POWER CHECKS ANOTHER. 313 

ments to oppress the people, becomes a wholesome check upon 
such oppression. The tendency of the legislature usually is 
to encroach upon the powers of the other departments. It 
cannot exercise them, but it can in many ways limit and di- 
rect their exercise. These departments are naturally watch- 
ful of their own powers, and they resist in every practicable 
way the legislative encroachment. The Constitution is the 
limit of legislative power. It protects very fully the execu- 
tive powers, and to some extent the judicial powers, from un- 
authorized encroachment. By forming separate departments 
with separate powers, and giving to the executive and legisla- 
tive officers short terms of service, the danger of their col- 
lusion to subvert the government or oppress the people is 
reduced to a minimum ; because the temptation is reduced. 
On the other hand, the ambition of the officer to deserve well 
of his country and of the people is stimulated ; he desires to 
retain his office, or pass from it to a higher one ; he confines 
himself to his own functions and becomes better qualified to 
discharge them ; better qualified to guard the line which sepa- 
rates his department from others ; more disposed to protect 
the system which gives him position and emolument; more 
disposed to shun the evil practices which promise failure, dis- 
grace, or retirement. 

With respect to the legislative department additional secu- 
rity results from the two chambers, unlike in their origin and 
duration of power, and inspired by the like jealousy of each 
other. Treason in one house could not survive its detec- 
tion in the other. " The great security," says Mr. Madison, 
" against the gradual concentration of the several powers in 
the same department, consists in giving to those who admin- 
ister each department the necessary constitutional means and 
personal motives to resist the encroachments of others. The 
provision for defence must in this as in all other cases be made 
commensurate to the danger of attack. Ambition must be 
made to counteract ambition." 

A republic, says Montesquieu, depends upon virtue. But, 
as remarked by Mr. Madison, " our pride and vanity attach 
us to a form of government which favors our pretensions." 
But pride and vanity may be the very forces which move us 



314 CONSTITUTIONAL HISTORY. 

to virtue. How far selfishness degrades an action otherwise 
noble and virtuous, we need not pause to discuss. A just ac- 
tion excludes the occasion for imputing a bad motive. We 
honor the man whose life is pure and honest, though his fun- 
damental maxim may be that " honesty is the best policy." 
Montesquieu is right in saying that a republic depends upon 
virtue, meaning virtuous action. Mr. Madison, securing all 
the aid virtue can render, would also obtain from lower motives 
the same result which Montesquieu ascribes to virtuous mo- 
tives. A government which permits every citizen to take 
equal part with every other; which permits the humblest to 
aspire to the highest place and sometimes to gain it; must 
strongly appeal to the pride and vanity of all that vast mass 
of people who, if the government should not open the way for 
them to participate in its functions, would never think of open- 
ing it themselves. It is certainly better that they should be 
for the government than against it. 

Mr. Madison's idea was that since human infirmities exist, 
they should be used so as to do the most good, and thus pro- 
duce the least evil. He would use one human infirmity to 
counteract another, as power against power, ambition against 
ambition, avarice against avarice ; he would place envy and 
jealousy as spies upon dishonesty and corruption, one party 
against another, the outs against the ins. Government does 
not create men ; it must deal with them as they are ; and since 
they are possessed of the weaknesses incident to humanity, 
which, if not properly employed, restrained, and regulated, 
might end in the ruin of us all, there is no choice but to do 
the best you can ; you must resort to the wisest expedients; 
you are not responsible for your lack of angels ; you are re- 
sponsible for putting men to the best use they are fitted for. 
Compelled to make a choice of evils, it is your duty to choose 
the least. But in this adjustment and balancing of destructive 
forces the virtues are cultivated. Both public and private 
good are made incitements to virtue, and punishment and dis- 
grace deterrents to vice. 

The framers of the Constitution assumed the existence of 
two qualities or conditions : the virtue of the people, and the 
ambition and selfish interest of their leaders. With respect 



THE WILL OF THE PEOPLE. 315 

to the people, their desire is for their individual good, and for 
the general good. On every abstract question of right their 
impulses are right. Upon the application of the abstract right 
to the concrete fact which they see and feel and are affected 
by, they are swayed by their passions, prejudices, and inter- 
est ; their generous impulses are often abused, their better 
judgments misled ; but their ultimate tendency is right. 

If we were to form our opinions of our own national virtue 
from studying the calendar of crimes committed, the instances 
of corruption, defalcation, fraud, dishonesty, petulance, hypoc- 
risy, ignorance, humbug, and incapacity, from which we are 
never exempt, and against which it is prudent to be constantly 
on our guard, we probably should conclude that the republic 
lacks the virtue essential to its permanence. But we should 
err. We should mistake the few for the many, the exceptions 
for the rule, the parasites upon the body politic for the body 
itself. The people will not continue to support men for office 
whom they believe to be wrong ; and if in fact wrong, they 
will ultimately find it out. The candidate for their suffrages 
must represent their will and affect the virtues they possess, if 
he does not himself share them. 

The aggregate will of the people is usually better than the 
average of the intelligence of the individuals composing the 
people, because they accept the judgment of men wiser than 
themselves. 

Free discussion is the bulwark of liberty. Give truth a 
chance to be heard, and in the long run it will make headway. 
Whatever makes against liberty is false in principle, or in ap- 
plication, and in free discussion truth will contend against it 
and finally overcome it. In a country of great territorial ex- 
tent like ours, liable to have erroneous opinions and theories 
spring up anywhere, free discussion is a most wholesome cor- 
rective. The truth hunts down the error, driving it from 
place to place and localizing it more and more, if it does not 
wholly exterminate it. If error must exist, it is better to 
confine it to as few, and small, and widely separated districts 
as possible. 

Indeed, the great extent and population of our country have 
proved to a degree not foreseen by the majority of the framers 



316 CONSTITUTIONAL HISTORY. 

of the Constitution to be a safeguard of our free institutions. 
History and political philosophy seemed to show that a re- 
publican government was unfitted for a country having a 
large extent of territory, and was only adapted to small dis- 
tricts, like the ancient democracies of Greece, or the cantons 
of Switzerland. Montesquieu, says, " The natural peculiarity 
of small states is to be governed as a republic, that of medium 
size by a monarch, that of vast extent by a despot." Mr. 
Madison combated this suggestion with great felicity in the 
papers which he contributed to " The Federalist." He distin- 
guished between a democracy and a republic : a democracy 
he defined to be a society consisting of a small number of 
citizens who assemble and administer the government in per- 
son ; a republic consists in the delegation of the powers of the 
government by all the citizens to a small number elected by 
the whole. In a democracy, the territory must be small to 
permit the citizens to assemble in one body. In a republic, 
since a few are chosen to represent the whole, these few can 
without much inconvenience make the necessary journey to 
the meeting place of the assembly. He pointed out, with a 
clearness which the event has justified, that great extent of 
country, instead of being an insuperable objection to a re- 
public, would, under the representative system, contribute to 
its stability and strength. The introduction of railroads, 
steamboats, and telegraphs has freed this method of govern- 
ment from most of the embarrassments of time and distance. 
Turbulence may develop in one section without finding sym- 
pathy in another ; the local influences that may mislead the 
people in one state will seldom exist in many states ; and the 
majority, liable to be mistaken in regard to men, will seldom 
be misled with respect to measures. They will not mistake 
oppression and tyranny for real advantages. 

Again, however bad the individual may be, he desires his 
government to be just. Thieves and malefactors will vote on 
the side of virtue when it is presented as an abstract ques- 
tion. As most of our laws are made to meet future cases, the 
opportunity to vote right is presented before the pressure of 
the particular case is felt, and hence the majority of our laws 
are nearly right. The evils we complain of arise from laws 
made in the presence and under the pressure of the case itself. 



RELIANCE UPON THE PEOPLE. 317 

Of course, the demagogue is the natural product of a demo- 
cratic government. Our system will not permit him to be- 
come a tyrant ; it compels him to study and promote the 
advantage of the people, as the most effective means for his 
own advantage. If, unhappily, the majority should go astray 
and attempt to exercise the " tyranny of the majority " for 
the oppression of any portion of the people, — for it is not 
probable that they would use it for the oppression of them- 
selves, — it is scarcely conceivable that they could command 
all the departments of the government at one time ; some one 
department would remain firm, and check the violence of the 
others. 

A condition can be conceived and a hypothetical case 
stated, in which all safeguards may prove inadequate. Such 
a case may arise. But we cannot suppose that it will con- 
tinue without some redress or amelioration after the next elec- 
tion. The government itself may thwart the will of the 
people. But then the people themselves must turn the govern- 
ors out. "If," said Mr. Hamilton, "the government should 
overpass the just bounds of their authority, the people must 
appeal to the standard they have formed, and take such meas- 
ures to redress the injury done to the Constitution as the 
exigency may suggest and prudence justify." 2 

The judicial department in the nation is more permanent. 
The judges hold office for life. In many of the states their 
tenure of office is long. History instructs us that liberty has 
nothing to fear from a judiciary permanent in its tenure and 
destitute of political function. 

It is only in representative governments that the separation 
of the legislative, executive, and judicial departments can be 
complete. In an absolute monarchy, the monarch, or the 
council he appoints, makes the laws. He or his appointees 
execute them. He or his judges expound them. Thus every 
power derives its source from the executive, and must in the 
nature of things tend to preserve his power and influence. 
The same is true of an aristocracy. The executive power may 
be manifold, but the principle of action is the same, and the 
result the same. 

1 Federalist, No. 33. 



318 CONSTITUTIONAL HISTORY. 

It is not strictly true that in our system the executive, legis- 
lative, and judicial functions of the government are absolutely 
separated into entirely distinct departments. The President, 
by his power of approval and veto, exercises an influence and 
often a control over legislation, and thus participates in legis- 
lative functions. The Senate participates with the executive 
in the appointment of officers, and in the making of treaties. 
The House of Representatives has a practical negative upon 
treaties which depend upon an appropriation of money. The 
House is the accusing body in case of impeachable offences. 
The Senate exercises judicial power in the trial of impeach- 
ments. The appointment of certain officers may be vested 
in the courts. But these exceptions do not impair the general 
effect of the separation of powers, or the good results of the 
system. The veto power tends to preserve the executive 
powers from legislative encroachment, to induce care in leg- 
islation, and is sometimes a wholesome corrective. The trial 
of impeachments is a function rarely exercised ; it would no 
doubt be wiser to commit it to a body of more judicial and 
less partisan methods. The participation of the Senate in 
appointments to office is injurious to that body, but it is wise 
to have some power assist the executive, and it is not easy to 
name any better. The appointment of officers is very spar- 
ingly committed to the courts. 

The Constitution provides for its own amendment. This is 
a safeguard against revolution and discontent. There may be 
defects in the system of government : here is power to re- 
move them. The prerogative is not difficult to use in case of 
a proper demand for it. It exists, and the people know that 
if defects in the system continue, it is because they continue to 
tolerate them. The fact that the Constitution is subject to 
revisal and amendment is a constant warning to those charged 
with the administration that any system which defeats the 
will of the people, the people can change. If no such remedy 
existed, it is probable that discontent would be increased, and 
small grievances be magnified into justification of rebellion or 
revolution. Revolution means convulsion and carnage ; those 
who excite it cannot control it ; no one knows when the end 
will come, or what it will be. How much better to secure in 



INFLUENCE OF LOCAL GOVERNMENTS. 319 

peace, and by lawful methods, the reforms suggested by ex- 
perience, and approved by the voice of more than a majority. 

Our system of national and state governments meets the 
wants and gratifies the feelings of our people. Herein lies the 
great guarantee of its strength and success. The people have 
a voice in the choice of the President and the representatives 
in Congress. National questions thus are brought sufficiently 
near to the people to engage their active attention, and give 
creed and character to the great political parties with which 
they are pleased to be connected, and into which they divide 
with a surprising nearness of equality in numbers. State and 
local affairs are brought very near to them. 

The direction of local affairs is usually controlled by state 
laws, but these are so framed as to give to every local constit- 
uency the practical management of its own local government. 
Each constitutency best knows its own wants and can best 
provide for them. The system of local self-government is 
practically coeval with the colonization of the country. Town- 
ships were the schools in which American democracy was first 
nurtured. The colony bore the impress of the township, the 
state of the colony, and the nation of the state. The wliole 
system is only the expansion of local self-government. Local 
self-government is the legacy of colonial times, and has become 
the inseparable attribute of American civilization. From the 
beginning it has flourished with the force and vigor of a spon- 
taneous product. It has been cultivated and preserved by 
constant and universal exercise. The sports and societies of 
children are not uncommonly regulated by rules, which the 
older children formulate in a written constitution and by-laws. 
The instinct of government by written laws is strong and ac- 
tive. And all over the land, from Plymouth Rock to the 
Golden Gate, the affairs of every road and school district, 
mining camp, lumber clearing, township, county, village, and 
city are locally self-governed. Not infrequently has it hap- 
pened that the march of emigration has pushed beyond the 
frontier posts of any state or territorial organization. There 
the governing genius of our people has asserted itself, and 
without waiting for any sanction from lawful authority has 
organized governments and administered justice. Their 



320 CONSTITUTIONAL HISTORY. 

methods may have been rude and their justice speedy, but the 
righteousness of their judgments has seldom been challenged. 
When the authority to organize a government reaches these 
pioneers in the due course of events, they usually are ready 
and competent to exercise it. 

The general government might, by its general laws, and 
system of bureaus, as in France, manage all local affairs, if 
such method were permissible under our system ; but it is 
obvious that it is much better for the people to take the direc- 
tion of their local affairs than for the general government to 
take it. In the one case, the people think and act for them- 
selves ; in the other, the government thinks and acts for them, 
— a fact which may accord in some degree with the difference 
between the American and French character, and account 
for it. 

Passing to state affairs, — if the people of the State of 
Maine desire to prohibit the sale of intoxicating liquors, there 
is no good reason why the people of any other state should 
object ; or why the people of Maine should move the whole 
nation in order to establish a domestic regulation. When 
such matters are confined to the states, the people of every 
state can do as the majority think best. Moreover, every 
citizen of the state is encouraged to take such action as he 
thinks proper. He is free from the depressing conviction that 
unless he can move the whole nation, his efforts are lost. If 
the laws permit each town or village to adopt or reject its own 
regulations respecting schools, public improvements, and other 
matters of local government, a wide field is open to persons, 
who would be dumb if they had to make the state or nation 
hear in order to be heeded. In American communities nearly 
every man, however feeble in intelligence or influence, some- 
times casts his thoughts beyond himself and considers what 
society ought to do. Our system of government encourages 
all to do this. More zeal than wisdom may be expended, but 
the desire to benefit mankind is a noble one, and the person 
who is moved by it is the happier for the privilege. Society 
is better as the result of the discussion. Even fools and fa- 
natics sport with some foundation questions of truth, and while 
they rant, wise men think, and the outcome is towards the di- 



TERRITORIAL EXPANSION. 321 

rection of the wisest thought. The sense of liberty to act as 
one thinks to be right, of the power to vote in the same way, 
of the hope to accomplish some good, is a positive happiness ; 
and that government builds wisely for itself and its people 
which secures and encourages this source of happiness. 

The expenses of government are usually less, the nearer the 
expenditure of money is kept within the control of those who 
provide it. If those who administer are under the eyes of 
those who pay the cost of administration, abuses will be less, 
and exposure of abuse more certain. A dollar accomplishes 
less in Washington than in our state capital, less in our state 
capital than under the charge of our local government. The 
further power is removed from its source, the more extrava- 
gant and irresponsible it becomes. 

Given local self-government, it matters little how vast a 
territory the nation embraces. Texas has little in common 
with Vermont except her equal desire for the national pros- 
perity, her claim for the equal benefit of the national protec- 
tion and instrumentalities, and her equal obedience to the 
national demands and authority. Subject alike to the na- 
tional Constitution, each may pursue in her own way her best 
methods of domestic happiness and prosperity, without in- 
juring the other, or exciting her jealousy or animosity. If 
Spanish invasion should threaten to pass the Rio Grande, or 
English invasion the St. Lawrence, the remoter state would 
be proud to guard the threatened bank of her sister's river. 

Any statesman who conceives the idea of superseding the 
state governments and extending the national government 
over them takes small account of the force of the trait of 
self-government in our people. It is the dominant principle 
of our system. It finds its greatest activity in local govern- 
ment, largely, no doubt, because the majority of people can- 
not well see beyond the local horizon. The struggle of the 
nation to gain and maintain its place was prolonged because 
the people feared that the local government, which they had 
and understood, was in danger from the new and greater gov- 
ernment, which they did not well understand, and therefore 
feared. Gradually this fear was dispelled. So many states 
and so many people of kindred race and purpose really formed 
21 



322 CONSTITUTIONAL HISTORY. 

a nation before its existence was declared, and gradually the 
people felt and saw the good the national government per- 
formed. Their vision expanded and took in the larger hori- 
zon. They saw that their local governments rested upon a 
surer base with the national guarantees. 

These guarantees are plainly expressed in the Constitution, 
and when time had inspired confidence in them, they added 
immensely to the strength of our system. Thus, " the United 
States shall guarantee to every state a republican form of gov- 
ernment " is not a mere phrase. Suppose a foreign power 
should invade a state and overthrow its government. The 
United States would expel the invader and restore republican 
government. Should the people of the state change their 
government to a monarchy, the United States would inter- 
pose and restore the republican form of government. Repub- 
lican government in every state is essential to the federal 
system ; if that system is changed by any state it is threat- 
ened throughout. The guarantee is essential to all the states 
as well as to any one of them. 

Suppose, as occurred in Rhode Island in 1842, two govern- 
ments contend for supremacy, each claiming to be legitimate. 
The result is anarchy and civil war unless one or the other 
be promptly suppressed. In the case cited the recognition of 
one government by the President effectually suppressed the 
other. 

The ratification of the Constitution was opposed by many 
upon the ground that the new government was made to de- 
stroy the states and deprive the people of power. Mr. Madi- 
son, in the forty-sixth number of " The Federalist," met this 
objection in his inimitable way. * ; Either," he said, " the 
mode in which the federal government is to be constructed 
will render it sufficiently dependent on the people, or it will 
not. On the first supposition, it will be restrained by that 
dependence from forming schemes obnoxious to their con- 
stituents. On the other supposition, it will not possess the 
confidence of the people, and its schemes of usurpation will 
be easily defeated by the state governments, which will be 
supported by the people." This reasoning is as true now as 
it was a hundred years ago. If the federal government should 



GOVERNMENT ADAPTED TO THE PEOPLE. 323 

lose the confidence of the people, it could not long exist. In 
the late rebellion, but for that confidence, it would have 
ended just as the old confederacy ended. 

To quote Montesquieu again : " Government is like all 
other things in the world : to preserve it, it must be loved. 
No one has ever heard it said that kings do not love mon- 
archy, or that despots hate despotism." Manifestly also a 
republic, to be securely grounded, must engage the affection 
and support of the people by whom and for whom it exists. 

Plainly a republican government cannot be readily adapted 
to every great empire, as Russia, for example. A constitu- 
tion must be framed with reference to the people to be gov- 
erned. It was the felicity of the American people that they 
were trained in republican government from their infancy. 
In an empire like Russia it would be rash to try to substitute 
a government like ours for the autocracy that prevails there. 
The habits of the people ; their industrial, commercial, and 
tribal interests ; their methods of thought ; their traditions, 
education, spirit, aspirations, religion, and resources ; the situ- 
ation, extent, and character of the country, — would all need 
to be considered, in superseding the present government by a 
republic. It probably would be better to begin with gradual 
changes, if such a suggestion is admissible. Under a wise 
ruler, by gradual changes a constitutional monarchy, in which 
some privileges of representation should be conceded to the 
most conservative classes of the people, might, and probably 
will, in the near future, be attempted. No monarchy is so 
absolute but it must and does feel the influence of the people, 
and never more than now. 

Possibly the empire of Morocco in the northwest corner of 
Africa is an exception to this remark. There the Sultan, who 
claims to be the thirty-fifth in lineal descent from the uncle 
and son-in-law of the prophet Mahomet, and who rules by 
virtue of a family succession unbroken for three hundred 
years, has ministers to advise him, but has no law save the 
Koran, and no interpreter of the Koran above himself. His 
will and word are the supreme law. It is wonderful that one 
of the fairest portions of the earth, bounded upon one side by 
the Mediterranean and upon the other by the Atlantic, the 



324 CONSTITUTIONAL HISTORY. 

very best corner on the cross-roads of civilization, should have 
reposed so long in the security of its incapacity in sight of 
the ships of the commerce of the world, and often within hear- 
ing of the guns of the contending fleets of Europe. Moham- 
etanism has stared from this corner in stupid peace upon 
centuries of Christian struggle and activity. 

The Mexican, Central American, and South American re- 
publics have constitutions somewhat similar to ours. But 
they do not operate with the energy, efficiency, tranquillity, 
and good results that we experience. The difference is not in 
the form and plan of their constitutions, but in the people. 
They have not yet attained the education, poise, elevation, 
virtue, and habits which inspire them to cooperate to make 
their government as good as possible, and to repose with con- 
fidence upon its stability and justice. Hence revolts, rebel- 
lions, or revolutions need scarcely surprise us. No doubt 
these are educators, cruel and wasteful though they may be. 
Through them, and in spite of them, the people will gradually 
work their way toward the capacity to govern themselves 
better. 

A government influences the people, and they in turn the 
government. No government within the range of civilization 
can escape the influences of the civilization of the age. Much 
less so now, when steam and electricity annihilate the bar- 
riers of time and distance. 

Our government exists so near to the people that the just 
complaint of the feeblest citizen can be heard. The people 
appeal, if need be, to the government without fear of rebuke, 
and with manly confidence. The government adapts itself to 
the people, and the people to their government. 

The stability and cohesion of our government has been 
aided by physical causes peculiar to our country. The great 
mountain ranges and intervening rivers run from north to 
south. They have been aptly called " nature's eternal liga- 
ments," binding the frozen North to the sunny South. The 
rivers of the country naturally bind our people together, and 
the steamboat has made the bond still stronger. The high- 
ways, post roads, and canals have followed the valleys and the 
rivers. Had these mountain ranges run from east to west 



THE SPIRIT OF NATIONALITY. 325 

the late civil war, as has been suggested, might have found 
an ally in nature that would have given success and perma- 
nency to the attempted division. The railroads and tele- 
graphs which cross the mountains came too late to avert the 
civil war, but they were aids to its speedier suppression, and 
now they bind the new Union together with stronger cords 
than ever before. 

The " Spirit of Nationality " is a bond of union which 
strengthens as the nation grows greater. The physical liga- 
ments of our country, both natural and artificial, contribute 
much to this spirit. Great mountain ranges and rivers sep- 
arate people. This separation is confirmed if different lan- 
guages, governments, institutions, and customs exist within 
the different states. The Pyrenees separate France from 
Spain ; the Alps, France from Italy, and Italy from Switzer- 
land. The Rhine formerly marked the line between the 
French and German races. The Rio Grande separates us 
from the Spanish speaking people of Mexico. But the differ- 
ence in race, customs, institutions, and language is the real 
boundary. 

Canada did not unite with us in the Revolution because we 
had no real kinship or sympathy with that people, nor they 
with us. When the English tongue and customs shall have 
superseded the French throughout the Dominion, union with 
us will not be difficult. It was because the people of the col- 
onies and states on this continent had so much in common 
that they came together in their desire and effort for indepen- 
dence, and afterwards in making a government for the nation 
which in fact had long been forming. The spirit of national- 
ity brought and kept them together. Witness the German 
and Austrian empires ; united Italy ; the kingdom of Spain ; 
the confederation of Switzerland; England, Scotland, and 
Wales ; Norway and Sweden. The separate parts came and 
remain together because their people have in some degree 
a natural affinity. In our country the spirit of nationality is 
strengthened by every event of our history. Even the sol- 
diers who fought in the opposing armies in the civil war now 
come together i n the same societies and associations. The at- 
traction of participation in the war overcomes the antagonism 



326 CONSTITUTIONAL HISTORY. 

arising from its opposing sides. Surely, the nation engages 
the love of the people. 

Again, its magnitude and strength, perfection of organiza- 
tion, and command of resources seem to forbid even attempt 
at destruction. Who shall contend against it ? 

Lessons drawn from history need not excite alarm for its 
perpetuity. Indeed, history marks a new era for mankind in 
the records of the deliverance of the people from the bondage 
of the usurped tyranny of rulers. Not a mere single instance, 
like that of the chosen people of Israel. Not here and there, 
as in the small city states of ancient Greece. Not deliver- 
ance for the patrician few and serfdom for the plebeian many, 
as in republican Rome. Not merely where the sea or the 
mountains become the allies of liberty, as in the Nether- 
lands or in Switzerland; but over continents and for the 
masses of all the people. In the New World liberty embraces 
the hemisphere ; in the Old it marches eastward from the 
islands of the west and from along the borders of the ocean. 
Conquering and to conquer under the Gospel banner of peace 
on earth and good-will toward men, it will enter and abide 
wherever mankind is prepared to receive it. The question of 
the future is not how to acquire liberty, but how to make the 
wisest and best use of it. 

The invention of printing, the wide diffusion of education, 
and the intercommunication of mankind afford a guarantee 
of good government in some form. The long delayed day of 
the equality of human rights has dawned. The world will 
never recede into the intellectual darkness of the Middle 
Ages. The people now know that governments are formed 
for their benefit, and as they have the power they will not 
consent to lose it. The science of government is better un- 
derstood than ever before. The value of a good constitution 
is known. Our people are not likely to lose the wisdom they 
have gained unless their vices destroy their physical and men- 
tal vigor. There is reason to hope that we shall gradually 
improve our government. Whatever is a true principle in 
justice in one country is true in all, — on the banks of the 
Danube and the Ganges no less than on the Hudson, — and 
the students in one country are students of every other. 



CONDITIONS FAVORABLE TO LIBERTY. 327 

Truth, wherever discovered, can no longer be confined to one 
section, one race, language, or continent, but must ultimately 
pervade and be the common property of all civilized peoples. 
The wisdom of the wisest becomes the common property of 
all. Steam and lightning bring the uttermost ends of the 
world together ; the better mankind know each other, the 
wiser and better they become. 

Our great physical strength and our isolated position pro- 
tect us. Our sense of justice should afford us a still stronger 
protection. Our vast expanse of territory renders sectional 
difficulties more sectional and less dangerous. State lines 
are only significant as indicating the limits of local jurisdic- 
tion. The same justice and substantially the same laws exist 
upon both sides of these lines. Our laws are, or are to be, 
the reflex of the popular will, and the aggregate popular will 
demands equal and exact justice. The era of great political 
leaders has passed away. The people have been levelled up 
nearer the leaders. The press, the platform, and a broader 
individual horizon contribute to displace the leaders of the 
people. No newspaper can be great that is a mere party 
organ. Careful students of our economic conditions are in- 
creasing in numbers and influence. The national habit of 
solving the problems of political economy by party platforms 
and a majority vote would be ridiculous, were it not for the 
fact that preceding and following the platforms there is uni- 
versal discussion ; by such means the facts and arguments 
which are ascertained and adduced by the learned and thought- 
ful are made familiar to great multitudes of people. 

Political students and writers who aspire to instruct the peo- 
ple spurn the imputation that they are bound by the fetters 
of party. They seek to lead the people, not a party, to true 
conceptions of political duty and national welfare. Nothing is 
sadder in our unwritten political history than the usual fate 
of the average political aspirant for public office and its emol- 
uments. Where one attains substantial success, hundreds 
wreck their lives. These men are usually of good native 
capacity, but of defective education and moral strength. In 
private pursuits their capacity joined to industry and integ- 
rity would secure them success. In political life a transient 



328 CONSTITUTIONAL HISTORY. 

success is usually followed by a lifetime of failure. Our his- 
tory is yet young, but if the lists of ambitious ruined and for- 
gotten aspirants for political distinction could be compiled, 
their bulk would be huge and their warning solemn. But 
there is reason to believe that we are slowly and steadily mul- 
tiplying the real elements of a solid, genuine, and intelligent 
public life. The weak and fickle, the sham and pretentious, 
the dishonest and knavish may never be less, but the capable 
and genuine will steadily increase in numbers and influence. 
Ten righteous men would have saved Sodom. The like rule 
holds good yet. Great is the saving power to the state of its 
capable and righteous men. 



LECTURE XIV. 

SOME SUPPOSED DANGERS. 

Folly and madness may destroy any human institution. 
Mere local spasms and convulsions will be suppressed by the 
greater strength of the larger and more sober portions of the 
country. The majority must be disaffected in order that any 
attempted revolutions shall achieve success. Foreign hostility 
or injustice would readily unite our people in foreign war. 
If we were feeble we might be ruined. But we are strong 
and have the ability to take care of ourselves, and to inspire 
an enemy with prudence. 

The spoliation of private property is a possible danger. 
Democracy, it is said, tends to crush the wealthy and intelli- 
gent classes. The redistribution of property and legal extor- 
tion from the wealthy have great attractions for the desperately 
poor. Universal suffrage has placed power in the hands of the 
poor. Organized and united poverty could outvote wealth, 
and dictate the laws, and thus bring about the tyranny of the 
majority. Wealth and intelligence are vigilant and power- 
ful ; vastly more powerful in proportion to numbers than 
ignorance and poverty. If, while they can make the choice, 
the alternative is presented between suffering the injustice of 
the mob and reposing in the tranquillity of a monarchy or a 
dictatorship, doubtless the latter would be preferred. 

If so, then the hopes of the poor depend upon even-handed 
justice ; if they should abuse their power and persist in its 
abuse, they would in the end lose their liberties, or some part 
of them. The rights of property must be respected, else in- 
telligence and wealth will combine for self-preservation. Such 
a combination in this country would sooner or later triumph 
over the anarchy, confusion, and distractions of the mob. 
Knowledge is power, and knowledge combined with wealth, — 



330 CONSTITUTIONAL HISTORY. 

wealth embracing in this country every man who has a house 
and lot, or some accumulation as the result of his industry and 
economy, — would restore peace and good order, though liberty 
might be largely sacrificed. Wealth itself can do much to 
avert any such evil by its fairness in bearing its just share of 
the burdens of government. This is one of the lessons wealth 
must learn. Where universal suffrage abounds, wealth can- 
not afford to oppress the poor in order to increase itself. The 
hopes of the rich also depend upon even-handed justice. 
Against the happening of any convulsions arising from the 
attempt of the poor to extort from the rich, and from the 
rich oppressing the poor, we have, in addition to the interests 
of both classes, the American respect for law and justice. 
Poverty is hard, but it is the school of virtue for large masses 
of the people, and there is little reason to suppose that any 
convulsions will rise to proportions above a riot. Americans 
usually suppress riots with promptness. When the exigency 
requires it, authority to use powder and ball is generally 
given, and in such cases no blank cartridges are used, and the 
conflict is short and the ascendency of authority rapid and 
complete. There seems to be a real kindness in the very 
cruelty of instant vigor. Every convulsion ought to teach 
both government and people practical wisdom. If it have its 
origin in a wrong done by the people's government, the in- 
struction of the people must lead to the correction of the 
wrong. The only common ground that all men and classes 
of men can stand together upon is that of fair play and no 
cheating. The individual might practise otherwise for him- 
self if he had the opportunity, but in state affairs only a few 
have the opportunity, and the masses seldom can agree upon 
any other thing than that which equal justice requires. From 
the necessity of the case the strength which is found in union 
can only be obtained by conforming to the terms which make 
union possible. 

But if a republic depends upon virtue we need not despair. 
The great mass of our people are virtuous to a degree never 
surpassed in any great country in any age. This is an age 
of inquiry, free discussion, and criticism ; the dogmas of the- 
ologians may have lost something of respect and force, but 



POSSIBLE DANGERS. 331 

practical and personal righteousness in daily life was never 
so abounding. Witness the vast circulation of religious and 
devotional books and publications ; witness the churches, 
schools, societies for the diffusion of knowledge, the promotion 
of temperance, the relief of suffering, the care of the unfortu- 
nate, the help of the poor. Witness also that private be- 
nevolence which seeks happiness in doing good. Indepen- 
dently of taxation every man and woman, whose means afford 
the privilege, unites with others in various organized efforts 
to help the unfortunate. We are apt to lose sight of the 
good in contemplation of the bad, forgetting that the good is 
the rule and the bad the exception, and that the exceptional 
always more strongly arrests attention. There is little rea- 
son to fear that the party of wickedness and lawlessness will 
ever outnumber the party of virtue, decency, and order. Bad 
men may deceive, mistakes may be made, but the evil will 
be temporary, and will be reformed in obedience to the right 
feeling of the greater numbers of our people. 

But it is said that the great strain will come, when our 
population shall have so increased that the masses cannot 
procure necessary food and clothing. That is a distant day, 
but there is no doubt that the time will come when our popu- 
lation will press upon the means of subsistence and be limited 
by it. Our population is destined to be great. In a hundred 
years it has grown from three to, say, sixty millions. We 
have, say, fifteen hundred millions of acres of land, good and 
poor, and some of it very poor. If three acres could be made 
to feed and clothe one person we could subsist five hundred 
millions of people — not ten times our present number. War, 
pestilence, and famine, in other ages and countries, have re- 
duced the number who eat to the supply of food to be eaten. 
Poverty of the food supply provokes war, pestilence, and 
famine. In America the conditions opposed to the waste of 
human life from any of these causes are powerful. Our isola- 
tion as well as our strength and martial qualities protect us 
from foreign wars ; our strength and respect for law protect 
us from domestic strife. Our sanitary regulations, under- 
taken by the national, state, and municipal authorities, protect 
us in a high degree from pestilence and infectious diseases, 



332 CONSTITUTIONAL HISTORY. 

and with advanced medical skill go far to prolong human 
life. The teachings and practice of Christianity in modern 
times tend to the preservation of every human life however 
miserable. Passing by the ethical question involved, and 
regarding the question solely in the interests of political 
economy, it would be better with men, as with animals and 
plants, that only the fittest should survive ; but the humanity 
of the nineteenth century embraces all in its benevolence, 
and spends possibly more time, money, and sympathy upon 
the broken human hulks that lie stranded upon the shores of 
existence, than upon those whose lives are worth preserving. 

The favorable conditions for the natural increase of our 
population, the swarms of the surplus of other peoples, must 
inevitably swell our numbers to the utmost limit of our means 
to afford subsistence. The fields of productive industry must 
become more and more crowded, and there will be an ever 
increasing throng of those who will want to enter, and yet be 
kept out. The wages of those who work will be less, the mul- 
titude of those who never can, or will work, will be greater. 
The rich and poor will be side by side, and yet between them 
a great gulf fixed. 

What can be done with the coming swarms of people, who 
cannot find work enough or obtain pay enough to afford them 
a decent subsistence ? Such a people, it is said, will listen to 
the demagogue, the adventurer, the charlatan, whoever will 
promise them the easiest help. The era of quacks will have 
arrived. Government may have a standing army to put them 
down, to shoot them on the streets, or force them to slink to 
their hovels and die. Can a popular government meet such 
a strain? The men who will swarm in revolts and mobs 
have votes, and their power to vote inevitably tends to weaken 
the power that should keep them in order. Will not the 
strong man mount to power and found a throne? Will not 
the order of despotism be preferred to the weakness and an- 
archy of universal suffrage ? This is the problem for the 
future. 

A prudent care of our public lands would go far to post- 
pone and avoid such a calamity. None but the actual settler 
should be permitted to acquire them. There should be no 



THE FOOD SUPPLY. 333 

monopoly of vast tracts. The landlord system of Europe 
should take no root here. Tenancy of land where one owns 
and another works is a species of thraldom unsuited to the 
genius of a free people. It cannot be entirely abolished, but 
the government should not extend the system. Our lands 
are too poor to support both landlord and tenant. 

Great inventions mark the nineteenth century. Steam and 
machinery do the work that otherwise would employ idle 
hands. Thousands bring only their hands into the markets of 
the world. Alas, for the man who has only human muscles 
to offer where machinery does so much ! The places for him 
in the great centres of industry are closing more and more. 
Machinery drives him to his mother earth as his final refuge. 

It is a significant fact that neither invention nor machinery 
can produce the materials for food or clothing. These now, 
as from the beginning of the world, must come from the ani- 
mal and vegetable kingdoms — that is, from growth. Seed- 
time and harvest, the eternal rejuvenescence of nature and the 
eternal ripening of her fruits, are the necessary conditions of 
human subsistence. The power given us by the Almighty to 
increase the productive capacity of earth, water, and air has 
thus far been imperfectly used. To make barren land pro- 
ductive, to make good land more productive, to increase the 
fish production of the rivers and seas, to multiply the food- 
giving fowls of the air, are not impossibilities. Governments 
are beginning to consider these matters. Agricultural, ex- 
perimental, and fish - propagating stations are established. 
Scientific investigators assert that all the ingredients of plant 
food, except such as the atmosphere affords, exist in inexhaus- 
tible supply in the minerals of the earth. If so, labor only 
needs intelligent direction to extract and apply them. We 
may reasonably hope that the demand for the best intelligence 
will be met. The government ought to be able to say to the 
poor man, There yet remains a little land upon which you may 
toil. Fortunate will it be if it can be said, There is no strip of 
earth so barren that intelligent toil may not extract from it 
some means of subsistence. We can foresee a probable source 
of danger, but we cannot foresee clearly how the expanding 
intelligence, humanity, and ingenuity of man will cope with it. 



334 CONSTITUTIONAL HISTORY. 

The existing means of transportation enables the surplus of 
one part of the earth to make good the deficiency of another. 
It encourages production in new and distant colonies. The 
continent of Africa will yet be made to contribute her share 
to the subsistence of the world's population. It can scarcely 
be doubted that the productiveness of the earth can be in- 
creased fifty-fold under the stimulus of necessity directed by 
the highest intelligence aided by the most appropriate means. 
What problems are to be solved in this direction can only be 
known when the need for their solution presses. We need 
not distress ourselves with the apprehension that wisdom is to 
perish with our generation, and that those who come after us 
will not have the strength their day requires. 

Universal suffrage has its evils, but it has its merits also. 
A government which seeks to maintain and protect the equal- 
ity of rights of all men can best do it by the most liberal ex- 
tension of the privilege of suffrage. The right to vote and the 
power of the vote afford the most effective shield which one 
class has against the oppression of another. The minority to- 
day may be the majority to-morrow, and government respects 
possible as well as actual power. Of course many are too 
ignorant to vote intelligently, and become mere tools in the 
hands of others, and too many make merchandise of their 
votes. But the good results must be weighed against the bad, 
and the balance clearly is on the side of justice to those who, 
but for their voting power, would be too often the objects of 
injustice and too weak to obtain redress. The privilege of 
suffrage is an educator ; the education may not be thorough, 
but it is better than none. It also gives the voter an increase 
of self-respect, and attaches him to the government of which 
he feels he is part. It is true that universal suffrage creates 
the professional politician, whose trade it is to sell nomina- 
tions and buy votes. But this low intriguer is known to be 
such. He is a mercenary go-between, who is usually content 
if he can get money and keep out of jail. When public virtue 
is aroused it puts him down and his dupes with him. We 
must not destroy our useful institutions because vermin infest 
them, but must do what we can to exterminate the pests. 

The great wealth of corporations and of a few individuals is 



WEALTH DEVOTED TO PUBLIC SERVICE. 325 

supposed to threaten public justice and official integrity by re- 
sort to bribery and corruption. This is a risk we are forced to 
take, and we must deal with it the best we can. Public ven- 
geance as well as legal punishment are sure to be visited upon 
the official who is detected in taking bribes. The bribe giver 
seems to be more leniently dealt with. The remedy for this 
evil is with the people. Great corporations wisely governed 
and honestly operated are public benefactors. They place the 
facilities which only great wealth can command at the service 
of every individual upon his payment of comparatively a small 
sum. The result is that the individual of moderate means can 
by the payment of small sums secure for his personal use and 
convenience the advantages which the wealth of others afford. 
Great fortunes are of no especial use to their owners, whether 
corporations or individuals: they must put them to public use 
for the public benefit. The methods of the age no longer per- 
mit the rich to have an excess of comfort and luxury propor- 
tional to their excess of wealth. Thus, for a few cents per 
mile, I can bring to my service in my personal travel all the 
speed and safety and comfort which a great railroad corpora- 
tion can render. The owners of the railroad can do no better. 
I do not need to own the railroad, I only need to own the few 
cents. This illustration can be expanded to embrace a thou- 
sand other instances, and should make us thankful that though 
we do not possess wealth, we can so readily and cheaply em- 
ploy all we reasonably need of its conveniences. These ad- 
vantages are peculiar to this century. 

The great bulwark of the people against the danger sug- 
gested, as also against so many others, is the judiciary. To 
the credit of our people, it may be said that whatever other 
evils they may tolerate, they will not tolerate a corrupt or 
incapable judge. The public sentiment upon this question is 
and always has been right. No matter how the judges may 
be chosen, judicial impartiality and incorruptibility have been 
imperiously and universally demanded. The demand has been 
supplied. There is no reason to suppose that the demand will 
ever be relaxed. No matter what the previous career or party 
association of the judge may have been, he must rise to the 
inexorable demands of the judicial office for perfect integrity 



336 CONSTITUTIONAL HISTORY. 

of action. He may be weak, but he must be honest. There 
is no reason to doubt that the high standard will be main- 
tained. It will probably be improved with the steady ad- 
vance in the science of jurisprudence. Justice therefore will 
be administered. It is to be lamented that the purity and 
integrity demanded of the bench have not been as inflexibly 
required of every other department of the government. We 
see that the demand, universally made and never relaxed, re- 
sults in a supply of the quality demanded. Plainly, if the 
legislative and executive departments fall below the proper 
standard of integrity, the remedy is with the people. 

The influx of immigration is great, and fears are expressed 
that the quality of our population will be reduced, and the 
danger of the subversion of our free institutions increased. 
Some of the immigrants, it may be, are fit instruments of 
mischief, if leaders and opportunity offer. The fate of those 
who perished on the scaffold at Chicago by the doom of 
American justice warns their sympathizers to avoid their of- 
fence. But we should not judge the many by the few. The 
great majority of immigrants are honest people, who come 
hither to improve their fortunes by honest industry. They 
cannot escape the influence of our people, government, and 
institutions, and few of them have any desire to do so. Their 
children born here will be native citizens. Children are imi- 
tative beings, and cannot avoid acquiring the habits and ideas 
of the only land they will ever know. We reject the Chinese 
because our country does not assimilate them with her own 
people. It is asserted and is probably true that the English- 
speaking and Teutonic races have similar race instincts, and 
that their children resume in America, upon association with 
each other and with the same surroundings, the indistinguish- 
able characteristics of their remote common ancestry. We 
need not fear the children of these immigrants ; they will be 
Americans all, bound to the country by precisely the like 
ties that bound Andrew Jackson, Chester Allan Arthur, and 
Philip H. Sheridan. With every passing year the proportion 
of native to foreign born increases. Death constantly dimin- 
ishes the number of foreigners, and birth increases the num- 
ber of natives. Death, birth, and time will surely send the 



CHURCH AND STATE. 337 

foreigners far to the rear and the natives far to the front. We 
need not fear the issue when the three most constant and 
potent factors of nature are with the native and against the 
foreigner. 

Some good people fear, or seem to fear, church or religious 
domination in the interest of one church to the downfall of 
our liberties. Nothing is more natural than religious jealousy. 
The ignorant believer of almost any religious creed is apt to 
be bigoted and intolerant. He believes he is right, and by 
consequence others are wrong, and he cannot understand why 
they persist in their errors. He is prompt to impute motives, 
and thus easily becomes jealous of danger or injury when none 
is intended. Almost every American influence opposes the 
revival of religious hostilities. Church and state are divorced. 
This is not a mere accident of our civilization and forms of 
government. It is the recognition of the fundamental dis- 
tinction between things eternal and spiritual and things tem- 
poral and worldly. If we regard both church and state as 
human institutions, then the divorce rests upon the proper 
division of labor, and the separation of distinct contrivances 
for the welfare of mankind. Both the statesman and the 
divine know full well that each institution is the more easily 
and efficiently operated, if it remains unembarrassed by any 
entangling relations with the other. 

The statesman knows that liberty in matters of religious 
faith and worship strengthens the state. The divine knows 
that the protection and confidence of the state afford the 
church the amplest opportunity to exert its moral and spir- 
itual influence. " My kingdom is not of this world," was 
the declaration of the author and finisher of the Christian 
faith, and " Render unto Cassar the things that are Caesar's," 
was his command. Hence separation from the worldly king- 
dom, but submission to its just requirements, would seem to 
be the indisputable law of the Christian churches. It is true 
that history and the existing practice in other lands afford ex- 
amples of the union of church and state, and argument is not 
wanting to urge its propriety and righteousness. 

In ages of intellectual darkness and of personal bondage, 
when the church alone held the remains of liberty, learning, 
22 



338 CONSTITUTIONAL HISTORY. 

and humanity, it did well to assume authority sufficient to 
soften the severity of rulers and check the turbulence of men. 
It was so far a human institution that it sought to keep this 
authority. Whatever may be the rule in other countries, the 
right of the church to bear civil power cannot be admitted in 
this. A revolution must first occur in the sentiments of the 
people respecting the true function of the church as an agency 
for the welfare of mankind. 

There may be here and there symptoms of resistance to 
universal liberty in religious faith and worship, and to the 
divorce between church and state. The voice of the sixteenth 
century may claim a hearing in the nineteenth. Old phrases 
may revive and be repeated ; they are the lament of a lost 
dominion. No church can prevent its American communion 
from perceiving that when it seeks to dictate to the state or 
usurp control over it, it abandons its proper functions. Every 
native American acquires something of an American political 
education. The church that is wise will not venture to dictate 
the political action of its members, so long as such action is 
morally permissible. The ultimate result of such attempted 
dictation would probably be the triumph of the American 
spirit of independence, and the return of the church to its 
appropriate duties. 

Every church, whether Catholic, Protestant, Hebrew, or 
Pantheistic, feels the need, not of the support, but of the pro- 
tection of the government. It has long been accorded. Any 
withdrawal of it would shock the universal sentiment of jus- 
tice. Any unfriendly assault by the government upon any 
one church would be construed as the right to assault any 
and all other churches. The government arrays itself against 
no church. It does try to suppress the polygamous practices 
of the Mormons, but this is not war against the church but 
against the offenders within it. It does not permit one who 
commits an offence against society to escape because his 
church tolerates or invites it. The liberty and security of 
any one church depend upon the civil equality of all of them. 

The decay of public virtue will result in the ruin of any 
state. This is our greatest danger. If it shall come, its ap- 
proaches will be slow and insidious, resulting in a real revo- 



DECAY IN PUBLIC VIRTUE. 339 

lution, without convulsion or rebellion, without any special 
event to mark its beginning and progress, but, like the dry- 
rot in oaken timber, destroying the quality before attacking 
the outward form, and leaving worthlessness where worthi- 
ness is most needed. Against such a danger a pure religion 
is the mightiest bulwark. Philosophy offers no substitute, 
for the reason that not one tenth of one per centum of the 
people have the mental and moral qualities to enable them 
to climb the heights of philosophical excellence and stay 
there. Education is some help to virtue, certainly, if the 
education is in virtue, but the education that is diffused 
among the masses of the people is more of a business utility 
than a moral help. Men are and ever will be anxious about 
the future life. Science and historical criticism may over- 
throw or confirm the faith of the few ; it will never touch that 
of the many. Evil example is the potent cause of the in- 
crease of ir religion. " Because iniquity shall abound the love 
of many shall wax cold." Any decline in the vigor and un- 
selfishness of the churches will contribute immensely to the 
decay of public virtue. There probably is some danger that 
the churches will, from motives of policy, from dependence 
upon the support of the people, from shrinking back from a 
contest with the particulars of immorality, fall somewhat short 
of their high calling. Does the pulpit never falter in the pres- 
ence of the pew ? Does it never shrink from following its 
convictions respecting the accustomed sins of its people? 
Does it never avoid its duty with regard to the particulars of 
evil at the gate of its own sanctuary, and find safety and re- 
pose in denunciation of the alleged sins of other times, places, 
and people ? And if so, is it the fault of the churches that 
it is so, or of the people who will have it so ? Is not the 
fault rather with the system, which makes the supply respond 
to the terms of the demand ? Or is the fault so slight that 
any vigorous attempt to remedy it would threaten more evil 
than good ? 

Be this as it may, it is of immense importance to the state 
that the churches of every sect and denomination should suf- 
fer no loss of their power and influence in leading the people 
to love virtue and to try to live virtuously despite tempta- 



340 CONSTITUTIONAL HISTORY. 

tions, and despite continual shortcomings. They are the nat- 
ural leaders and teachers in the methods of peace, good will, 
and charity. Every one blesses the consolers of the afflicted, 
the comforters of those ready to perish, the true pastors and 
benefactors of the people. The real hope of the churches is 
in the gracious favor of the Almighty One. This, the changes 
in civil order cannot reach, and hence cannot touch the church 
in its true sphere. 

We may reasonably hope that the opportunity for the use- 
fulness of the churches will increase and be improved. The 
trend of Christian people, as they increase in intelligence, is 
toward Christian unity and practical Christianity. As the 
age of religious wars and persecutions recedes, the inherited 
antagonisms between rival sects slowly fade away. As all 
parts of the earth contribute to the common stock of wisdom, 
ignorant prejudice is more and more exposed and disarmed. 
Hence the Christian churches must come nearer and nearer 
together in things essential, as the procession of the genera- 
tions moves along. It will naturally follow that they will 
more and more cooperate in beneficent labor and influence. 
Thus, their usefulness will be greater, the antagonism to 
them less, and the occasion for disparaging criticism less. 
Under their lead and ministration, why should not public and 
private virtue have all the incentive, support, and nourishment 
which a pure and holy religion is so potent to afford ? Why 
should not public and private sins receive that just and dis- 
passionate exposure and rebuke which they deserve, and which 
holy men can so fitly administer ? 

Corresponding with the influence of religion other useful 
agencies will abound and. cooperate to improve and help man- 
kind. The tone of the press, the character of official as well 
as of private utterances, will be influenced by the standard of 
virtue among the people. Civilization will improve or de- 
generate accordingly. The assaults upon religion will be 
harmless or harmful as its works and influence are or are not 
practically powerful for good. 

It is in the purifying influence of religion that we must 
rest our hope for the prevalence and continuance of that vir- 
tue without which our Constitution and forms of govern- 



THE CONSTITUTION A BLESSING. 341 

rnent will prove to be skeletons, unanimated by any vital 
principle of usefulness. 

But granting the requisite virtue, under favor of Almighty 
God, our Constitution is and will remain an inestimable bless- 
ing. It secures the inalienable rights of all men within its 
jurisdiction against the government itself, and against any 
and all masses of men, here or anywhere. It fixes these in- 
alienable rights as impassable limits to the ebb and flow of 
the popular tide. Within these limits, let the tide rise and 
fall and beat and surge. Agitation is wholesome. Perfect 
quiet would be stagnation. The limits are fixed ; it is im- 
probable that any change will weaken or remove them, and 
thus the rights of man are as secure as his own keeping can 
make them. 



SUPPLEMENTAL CHAPTER. 

Should our System of Government be tested by the Quality 
of our Statesmen? — Limited and Unlimited Democracies. — 
Tendency of Great Britain to Unlimited Democracy. ' 

Mr. Bryce, in the " American Commonwealth," says that 
" in the free countries in Europe the men who take the lead in 
public affairs may be deemed fair specimens of its best talent 
and character, and fair types, possibly, of the virtues of the 
nation." But he finds that such is not the case in America, 
and he regards the fact as unfortunate. He devotes a chapter 
to " Types of American Statesmen " of the present generation, 
and he finds only two : one the shrewd, cool, hard-headed man 
of business, usually a lawyer or a man in commerce, lacking 
imagination, breadth of view, but with a tight grip of facts, 
a keen insight into men, and the tact to deal with them ; a 
ready and effective but not a polished speaker, able for the 
kind of work which needs the combination of a sound busi : 
ness head and the power of working with others. 

The other type is the man who has the gifts of popular 
oratory, can move the masses, rule party committees, carry 
conventions, and is a master of intrigue. He may also have 
the higher attributes of statesmanship, but his methods of ac- 
tion are unfavorable to their development. Mr. Bryce con- 
trasts these types unfavorably with the higher types of Euro- 
pean statesmen, and regrets that democracy, which, as he says, 
so much needs great men to lead and inspire the people, should 
be so constituted as not to attract or develop them. With 
characteristic mitigation of his harsher judgments, he adds, 
that among the statesmen of the first of the American types 
which he describes, " there are always ability and integrity 
sufficient for carrying on the regular business of the country." 
He devotes a chapter to the question, " Why the best men do 
not go into politics " in America, or, as he elsewhere expresses 



LIMITATIONS OF AMERICAN POLITICS. 343 

it, " Why the best men do not come to the top." He assigns 
the following reasons : The want of a social and commercial 
capital. The great distances between the capital and the 
homes of the representatives. 

No class as in England to whom political life comes natu- 
rally with a sort of hereditary right. 

The representative is chosen in the district of his residence, 
and if he cannot be elected there, no other district is open to 
him. Short tenure of office, and the practice of rotation. 

Politics is less interesting than in Europe because legisla- 
tive authority is divided between the nation and state, and 
American isolation excludes so many questions of foreign 
policy. 

.Religion is outside of politics. 

There are no classes, and therefore no class issues. 

No social advantages obtained through politics. 

The attractive fields open to men of ability in great busi- 
ness undertakings. 

The disreputable methods of partisan politics, and the 
practice of selecting candidates because of their availability 
instead of their ability. 

The reasons adduced by Mr. Bryce are forcible, and in part 
explain the difference between the American statesmen, taken 
as a class, and the statesmen of the free countries of Europe. 
He also adds that questions of domestic constitutional change 
are happily absent. This is an important consideration. Of 
more importance is the fact that our written Constitution 
places such limitations upon our public officers, and especially 
our representatives in Congress, as confine them to a narrow 
and well defined sphere. This fact tends to restrict the de- 
velopment of great statesmen, and perhaps also tends to 
repel some men of the first ability from political life. 

Mr. Bryce's statement that those who in the free countries 
of Europe take the lead in public affairs are of the best talent 
is no doubt true, if we confine our examination to those who 
are attracted to political careers. The thoroughly able and 
educated men to whom political careers offer no attractions, 
or oppose too many obstacles, are probably as numerous there 
as here. The men who succeed in a political career there are 



344 CONSTITUTIONAL HISTORY. 

no doubt more thoroughly trained for it than with us ; they 
make it a life work, and because of their equal ability with 
our statesmen, their better preliminary training, and their con- 
stant service, become accomplished to a degree rarely attained 
here. 

Besides, the need of such men is far greater there than here. 
In Great Britain, especially, her unwritten constitution, de- 
spite everything said in its favor, is a constant menace. Par- 
liament governs, and is unchecked by constitutional restraint. 
It is a constitutional convention always in existence, and with- 
out any of the restraints which limit such a convention in the 
United States. Here a constitutional convention can only 
propose constitutional changes ; it cannot make them. But 
in Parliament the constitution may be changed at any time. 
Hence the pressing need that the ablest and wisest men in 
the kingdom should supply the restraints which the Constitu- 
tion omits. Not so in the United States. All our represen- 
tatives in Congress have to do is to operate and provide for 
the organism as it exists, and within the prescribed systems 
and limitations. The men who made our Constitution are 
still wielding an influence possibly greater than that of all our 
senators and representatives in Congress. This fact may de- 
prive us of living heroes as the objects of our worship, but 
with the example of France before us, it may well be doubted 
whether hero worship is not a real danger, and an obstacle to 
the successful government of the people by the people. It 
certainly is when the people worship heroes who abuse their 
power. While it would be gratifying to our national pride, 
as we exhibit ourselves to the world, to be represented by our 
ablest men, it is a matter for profound congratulation that it 
is by no means necessary. 

Honest men of good abilities can administer our govern- 
ment. Under the guide and limitations of the Constitution, 
the present needs and methods must be much like those of 
the past; the changes required by development and growth 
are in degree and not in kind. 

The like remarks may be applied to state and municipal 
governments. Those who draw the constitution of a state or 
charter of a city are the real governors. They prescribe the 



SECURITY BY SYSTEM. 345 

plan and impose the conditions of subsequent operations. 
They are the architects, the men now in office are the work- 
men. It seems to be a waste of ability to reduce the archi- 
tect to the workman's employment. It may sometimes 
happen that we suffer because the materials committed to 
the workman's hands become the spoil of his cupidity or are 
injured through his incompetency. But ordinary prudence 
will secure trustworthy and competent workmen. 

Mr. Bryce assumes as axiomatic that the excellence of a 
system of democratic government may be tested by the excel- 
lence of the statesmen it produces. The test is obviously not 
applicable to the United States. 

We may admit the superiority of the British statesmen 
without weakening our claim to the superior system. Our 
s} 7 stem, it is respectfully submitted, depends as little as pos- 
sible upon the ability and fidelity of our statesmen, and can 
hardly be menaced by their strife, ambition, or combination. 
Our Constitution gives to the people the written title to good 
government, and gives to them the custody of the title, while 
the people of Great Britain hold their title upon the honor, 
fidelity, and ability of their governors in Parliament. 

The differences between the average types of American 
and European statesmen, which Mr. Bryce exhibits as defects 
indicating defects in our system, may, after all, be real advan- 
tages. Because of our constitutional limitations, because the 
sphere of political life and of statesmanship is narrow and of 
well-trodden routine, the field of politics opens to a much 
larger, and it may be admitted, to a much inferior class of 
persons than in Europe. The conditions here are such that 
respectable success may be achieved with much less of pre- 
liminary training, if only native ability be present. The 
result is a much more widely diffused interest in public af- 
fairs, a much keener individual sense of identity with the 
nation and state, a much greater prevalence of ambition to 
participate in official life, and an ever present stimulus to 
young men of capacity to deserve well of their fellow-men. 
However low may be the condition of the parents, they are 
not without hope that their children will attain to a better 
state than their own. If every mother sometimes thinks that 



346 CONSTITUTIONAL HISTORY. 

her boy may yet become President, her thought does not merit 
a sneer ; it is a part of the sentiment that helps to make the 
country great, happy, and hopeful. 

To the extent that our system extends an equal right to all 
to strive to attain its honors and participate in its administra- 
tion, to that extent does it contribute to extend the greatest 
possible happiness to the greatest possible number. Our ex- 
perience attests the fact that the Constitution supplies in a 
requisite degree of safety the proper safeguards against over- 
weening ambition and individual lack of preliminary training. 
In other words, our public officers are supplied with a chart 
of duty already well prepared. It may be said that no Con- 
stitution can supply a people with wisdom, or be a substitute 
for it. The remark has no relevancy to the American peo- 
ple, for they do understand their Constitution, they absorb its 
wisdom, and what is more, respect and confide in it. Its gov- 
ernmental precepts and methods are part and parcel of their 
existence. What therefore we may lose in the greatness and 
brilliancy of our statesmen, we hope we gain in the elevation 
and happiness of the masses of the people. 

Democracy is reproached by philosophers for its jealousy of 
great men. An unlimited democracy has reason to fear their 
ambition ; a democracy limited by a written constitution has 
little reason to fear them, and therefore little reason to be 
jealous of them. Great statesmen are the product of the 
great crises which develop and prove their greatness. Great 
statesmen sometimes cause great crises. The fewer such 
schools and tests the better. The American people are proud 
of their great statesmen, but they have abundant reason to be 
proud of their system which renders them so little dependent 
upon great statesmen, and reasonably safe from the dangers 
of great crises which great statesmen may bring about, if 
there is no constitution to check their ambition. 

Mr. Bryce suggests that the good results we have obtained 
under our system of government are largely due to circum- 
stances which are no part of the system itself, but indepen- 
dent of it, — such as our ancestry, habits of order, patience, 
hopefulness, love of justice, sobriety, enterprise, liberal views, 
for all of which we may thank our English mother ; that our 



DEMOCRACY LIMITED AND UNLIMITED. 347 

country is so large and our resources so great ; that trie bounty 
of nature has compensated for the waste and improvidence of 
men ; that we are caused no anxiety, and are put to no charges 
by hostile neighbors ; and that we could not help but do well 
under almost any system of government. 

Our Constitution does not deserve the disparagement thus 
implied. It is itself as much the product of all the circum- 
stances which touched our ancestors as they were themselves. 
Its framers adapted it to their country and themselves, as they 
would have adapted a bridge to the stream it was to span and 
to the service they required of it. The experience of a cen- 
tury tests the quality of our Constitution no less than that of 
our people. If the people have done tolerably well, they 
have done so with the help of the Constitution, not in spite 
of it. 

Mr. Bryce cannot refrain from trying to peer into the fu- 
ture. Rash as the attempt may seem to be, it is quickly par- 
doned, for we all share more or less in the same curiosity. He 
cheers us with his happy augury, and we accept his pleasant 
prediction of continuing prosperity and security. As we go 
with him we cannot refrain from trying to peer into the future 
of Great Britain. The United States will probably long 
preserve her Constitution without material change. Great 
Britain discloses signs of also becoming a Democracy, but un- 
like the United States, a Democracy without a written con- 
stitution. 

If we pass by the ten amendments adopted in compliance 
with the request of several states which accompanied their 
ratification of the Constitution, we see that the Constitution 
has never since been amended except to remedy such of its 
workings as excited general alarm. We may thence reason- 
ably infer that it will not hereafter be amended except in like 
cases. The United States, it may be believed, will continue 
to be a Democracy limited by fundamental law, which will 
not be changed except for the better. 

When we speak of the government and institutions of Great 
Britain,, we generally regard them as lifted above democratic 
touch and control, and as vested in the safe keeping of the 
ablest and best of the land. The masses of the people are 



348 CONSTITUTIONAL HISTORY. 

not brought prominently into view ; they are put aside as the 
passive objects of the care of the government, and in no im- 
portant sense its directors or participators in its direction. 
Hence a comparison of the public men of the two nations is, 
in a large degree, a comparison between the best of all in one 
country and the average of all in the other. Such a com- 
parison is not a fair test of the merits of the two systems of 
government, though the system of each produces the public 
servants it exhibits to the world. 

Whoever undertakes to forecast the future of Great Brit- 
ain must take into account the fact that it has recently so 
changed its constitution as to permit it to become a Democracy 
unlimited by fundamental law. By the Act of 1884, for the 
" Representation of the People," suffrage was made well nigh 
universal. There is now one elector to about every six of the 
entire population. Practically, therefore, the masses have 
the power to control the election of members of Parlia- 
ment. Without any constitutional check over Parliament, 
the masses need only to assert their power, to bring the king- 
dom under their control. They do not yet know their power. 
They did not know it in the United States until Jefferson 
began their instruction and Jackson completed it. Will there 
be no Jefferson and Jackson in Great Britain ? It is not diffi- 
cult to suppose that there will be a Parliament chosen by the 
masses and of them. But will not the House of Lords remain 
as a conservative force ? The encroachments of Democracy 
may not be swift or violent, as in the French Revolution ; it 
will comport with the British temper to make them tenta- 
tively and gradually. Conservative restraints may be pressed, 
a little here and there, no further than they will be yielded, 
rather than provoke a rupture. Separate periods of time 
may need to be compared to ascertain the sum of the almost 
imperceptible changes. It is possible that the sum will swell 
until the House of Lords and every vestige of royalty will be 
swept away. 

That there will be henceforth a tendency, never retrograd- 
ing, towards Democracy in Great Britain, it seems safe to as- 
sume. 

Happy will it be for the kingdom and for mankind if British 



CONSTITUTIONAL CHECKS NECESSARY. 349 

Democracy, somewhere in its progress, shall imitate American 
prudence, and in the sober season of dispassionate wisdom, im- 
pose written constitutional checks upon its own excesses and 
injustice, and intrust the keeping of the charter to the hands 
of the people, above and beyond control or change by those 
who make or administer the laws. For well nigh seven cen- 
turies the people have preserved Magna Charta against the 
encroachments of royal power. Royal power has no Magna 
Charta to protect itself. The people need a Magna Charta 
to protect themselves from themselves. None can make it or 
preserve it so well as themselves. The United States bears 
witness to Great Britain, and to the world, that an intelligent 
people can make a good Constitution and preserve it even 
against the assaults of their own rashness. Possibly Great 
Britain will yet profit by the example set by the people, who, 
escaping from her household, voluntarily submitted themselves 
to a system which preserves to them the best of the laws their 
mother country administered. If so, then he who in some 
post- Victorian age shall compare the people of the two coun- 
tries and their systems and institutions will not inquire which 
country produces the larger number of great statesmen, but 
under which government are the happiness and equality of 
all the people best secured and respected. May rivalry with 
such a test of supremacy continue forever. 

If constitutional checks shall not be interposed and re- 
spected, Macaulay's traveller from New Zealand may yet take 
his stand on the broken arch of London Bridge, not to sketch 
the ruins of St. Paul's, but to contemplate the ruins of a 
monarchy wrought by an unchecked Democracy. 



APPENDIX. 



ARTICLES OF CONFEDERATION AND PERPETUAL UNION 
BETWEEN THE STATES. 

TO ALL TO WHOM THESE PRESENTS SHALL COME, WE THE 
UNDERSIGNED DELEGATES OF THE STATES AFFIXED TO OUR 

names, send greeting. — Whereas the Delegates of the United 
States of America in Congress assembled did on the 15th day of No- 
vember in the Year of our Lord 1777, and in the Second Year of the 
Independence of America agree to certain articles of Confederation 
and perpetual Union between the States of New Hampshire, Massa- 
chusetts-bay, Rhode-island and Providence Plantations, Connecticut, 
New- York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North- Carolina, South-Carolina, and Georgia, in the words following, 
viz: — 

" Articles of confederation and perpetual union between 
the states of new-hampshire, massachusetts-bat, rhode- 
island and providence plantations, connecticut, new- 
york, new-jersey, pennsylvania, delaware, maryland, 
virginia, north-carolina, south-carolina, and georgia. 
Article I. The Stile of this confederacy shall be " The United 
States of America." 

Article II. Each state retains its sovereignty, freedom and inde- 
pendence, and every Power, Jurisdiction and right, which is not by 
this confederation expressly delegated to the united states, in congress 
assembled. 

Article III. The said states hereby severally enter into a firm 
league of friendship with each other, for their common defence, the 
security of their Liberties, and their mutual and general welfare, bind- 
ing themselves to assist each other, against all force offered to, or at- 
tacks made upon them, or any of them, on account of religion, sover- 
eignty, trade, or any other pretence whatever. 

Article IV. The better to secure and perpetuate mutual friend- 
ship and intercourse among the people of the different states in this 



352 APPENDIX. 

union, the free inhabitants'of each of these states, paupers, vagabonds, 
and fugitives from Justice excepted, shall be entitled to all privileges 
and immunities of free citizens in the several states ; and the people 
of each state shall have free ingress and regress to and from any other 
state, and shall enjoy therein all the privileges of trade and commerce, 
subject to the same duties, impositions and restrictions as the inhab- 
itants thereof respectively, provided that such restriction shall not ex- 
tend so far as to prevent the removal of property imported into any 
state, to any other state of which the Owner is an inhabitant ; provided 
also that no imposition, duties or restriction shall be laid by any 
state, on the property of the united states, or either of them. 

If any person guilty of, or charged with treason, felony, or other 
high misdemeanor in any state, shall flee from Justice, and be found 
in any of the united states, he shall upon demand of the Governor or 
executive power, of the state from which he fled, be delivered up and 
removed to the state having jurisdiction of his offence. 

Full faith and credit shall be given in each of these states to the 
records, acts and judicial proceedings of the courts and magistrates of 
every other state. 

Article V. For the more convenient management of the general 
interest of the united states, delegates shall be annually appointed in 
such manner as the legislature of each state shall direct, to meet in 
congress on the first Monday in November, in every year, with a 
power reserved to each state, to recal its delegates, or any of them, 
at any time within the year, and to send others in their stead, for 
the remainder of the Year. 

No state shall be represented in congress by less than two, nor by 
more than seven members ; and no person shall be capable of being 
a delegate for more than three years in any term of six years ; nor 
shall any person, being a delegate, be capable of holding any office 
under the united states, for which he, or another for his benefit re- 
ceives any salary, fees or emolument of any kind. 

Each state shall maintain its own delegates in any meeting of the 
states, and while they act as members of the committee of the states. 

In determining questions in the united states, in congress assembled, 
each state shall have one vote. 

Freedom of speech and debate in congress shall not be impeached 
or questioned in any Court, or place out of congress, and the members 
of congress shall be protected in their persons from arrests and im- 
prisonments, during the time of their going to and from, and attend- 
ance on congress, except for treason, felony, or breach of the peace. 

Article VI. No state without the Consent of the united states in 



APPENDIX. 353 

congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance or treaty with 
any King prioce or state ; nor shall any person holding any office of 
profit or trust under the united states, or any of them, accept of any 
present, emolument, office or title of any kind whatever from any 
king, prince or foreign state ; nor shall the united states in congress 
assembled, or any of them, grant any title of nobility*. 

No two or more states shall enter into any treaty, confederation or 
alliance whatever between them, without the consent of the united 
states in congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No state shall lay any imposts or duties, which may interfere with 
any stipulations in treaties, entered into by the united states in con- 
gress assembled, with any king, prince or state, in pursuance of any 
treaties already proposed by congress, to the courts of France and 
Spain. 

No vessels of war shall be kept up in time of peace by any state, 
except such number only, as shall be deemed necessary by the united 
states in congress assembled, for the defence of such state, or its trade ; 
nor shall any body of forces be kept up by any state, in time of peace, 
except such number only, as in the judgment of the united states, in 
congress assembled, shall be deemed requisite to garrison the forts 
necessary for the defence of such state ; but every state shall always 
keep up a well regulated and disciplined militia, sufficiently armed and 
accoutred, and shall provide and have constantly ready for use, in 
public stores, a due number of field pieces and tents, and a proper 
quantity of arms, ammunition and camp equipage. 

No state shall engage in any war without the consent of the united 
states in congress assembled, unless such state be actually invaded by 
enemies, or shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such state, and the danger 
is so imminent as not to admit of a delay, till the united states in con- 
gress assembled can be consulted : nor shall any state grant commis- 
sions to any ships or vessels of war, nor letters of marque or reprisal, 
except it be after a declaration of war by the united states in congress 
assembled, and then only against the kingdom or state and the sub- 
jects thereof, against which war has been so declared, and under such 
regulations as shall be established by the united states in congress 
assembled, unless such state be infested by pirates, in which case ves- 
sels of war may be fitted out for that occasion, and kept so long as the 
danger shall continue, or until the united states in congress assembled 
shall determine otherwise. 
23 



354 APPENDIX. 

Article VII. When land-forces are raised by any state for the 
common defence, all officers of or under the rank of colonel, shall be 
appointed by the legislature of each state respectively by whom such 
forces shall be raised, or in such manner as such state shall direct, and 
all vacancies shall be filled up by the state which first made the ap- 
pointment. 

Article VIII. All charges of war, and all other expenses that 
shall be incurred for the common defence or general welfare, and al- 
lowed by the united states in congress assembled, shall be defrayed 
out of a common treasury, which shall be supplied by the several states, 
in proportion to the value of all land within each state, granted to or 
surveyed for any Person, as such land and the buildings and improve- 
ments thereon shall be estimated according to such mode as the united 
states in congress assembled, shall from time to time, direct and ap- 
point. The taxes for paying that proportion shall be laid and levied 
by the authority and direction of the legislatures of the several states 
within the time agreed upon by the united states in congress assem- 
bled. 

Article IX. The united states in congress assembled, shall have 
the sole and exclusive right and power of determining on peace and 
war, except in the cases mentioned in the 6th article — of sending and 
receiving ambassadors — entering into treaties and alliances, provided 
that no treaty of commerce shall be made whereby the legislative 
power of the respective states shall be restrained from imposing such 
imposts and duties on foreigners, as their own people are subjected to, 
or from prohibiting the exportation or importation of any species of 
goods or commodities whatsoever — of establishing rules for deciding 
in all cases, what captures on land or water shall be legal, and in what 
manner prizes taken by land or naval forces in the service of the 
united states shall be divided or appropriated — of granting letters of 
marque and reprisal in times of peace — appointing courts for the trial 
of piracies and felonies committed on the high seas and establishing 
courts for receiving and determining finally appeals in all cases of 
captures, provided that no member of congress shall be appointed a 
judge of any of the said courts. 

The united states in congress assembled shall also be the last resort 
on appeal in all disputes and differences now subsisting or that here- 
after may arise between two or more states concerning boundary, juris- 
diction or any other cause whatever ; which authority shall always be 
exercised in the manner following. Whenever the legislative or ex- 
ecutive authority or lawful agent of any state in controversy with an- 
other shall present a petition to congress, stating the matter in question 



APPENDIX. 355 

and praying for a hearing, notice thereof shall be given by order of 
congress to the legislative or executive authority of the other state in 
controversy, and a day assigned for the appearance of the parties by 
their lawful agents, who shall then be directed to appoint by joint 
consent, commissioners or judges to constitute a court for hearing 
and determining the matter in question : but if they cannot agree, 
congress shall name three persons out of each of the united states, and 
from the list of such persons each party shall alternately strike out 
one, the petitioners beginning, until the number shall be reduced to 
thirteen ; and from that number not less than seven, nor more than 
nine names as congress shall direct, shall in the presence of congress 
be drawn out by lot, and the persons whose names shall be so drawn 
or any five of them, shall be commissioners or judges, to hear and 
finally determine the controversy, so always as a major part of the 
judges who shall hear the cause shall agree in the determination : and 
if either party shall neglect to attend at the day appointed, without 
showing reasons, which congress shall judge sufficient, or being present 
shall refuse to strike, the congress shall proceed to nominate three 
persons out of each state, and the secretary of congress shall strike in 
behalf of such party absent or refusing; and the judgment and sen- 
tence of the court to be appointed, in the manner before prescribed, 
shall be final and conclusive ; and if any of the parties shall refuse to 
submit to the authority of such court, or to appear or defend their 
claim or cause, the court shall nevertheless proceed to pronounce sen- 
tence, or judgment, which shall in like manner be final and decisive, 
the judgment or sentence and other proceedings being in either case 
transmitted to congress, and lodged among the acts of congress for the 
security of the parties concerned : provided that every commissioner, 
before he sits in judgment, shall take an oath to be administered by 
one of the judges of the supreme or superior court of the state, where 
the cause shall be tried, " well and truly to hear and determine the 
matter in question, according to the best of his judgment, without 
favour, affection or hope of reward : " provided also that no state shall 
be deprived of territory for the benefit of the united states. 

All controversies concerning the private right of soil claimed under 
different grants of two or more states, whose jurisdictions as they may 
respect such lands, and the states which passed such grants are ad- 
justed, the said grants or either or them being at the same time claimed 
to have originated antecedent to such settlement of jurisdiction, shall 
on the petition of either party to the congress of the united states, be 
finally determined as near as may be in the same manner as is before 
prescribed for deciding disputes respecting territorial jurisdiction be- 
tween different states. 



356 APPENDIX. 

The united states in congress assembled shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin 
struck by their own authority, or by that of the respective states — 
fixing the standard of weights and measures throughout the United 
States — regulating the trade and managing all affairs with the In- 
dians, not members of any of the states, provided that the legislative 
right of any state within its own limits be not infringed or violated 
■ — establishing or regulating post-offices from one state to another, 
throughout all the united states, and exacting such postage on the 
papers passing thro' the same as may be requisite to defray the ex- 
penses of the said office — appointing all officers of the land forces, in 
the service of the united states, excepting regimental officers — ap- 
pointing all the officers of the naval forces, and commissioning all 
officers whatever in the service of the united states — making rules 
for the government and regulation of the said land and naval forces, 
and directing their operations. 

The united states in congress assembled shall have authority to ap- 
point a committee, to sit in the recess of congress, to be denominated 
" A Committee of the States," and to consist of one delegate from each 
state ; and to appoint such other committees and civil officers as may 
be necessary for managing the general affairs of the united states under 
their direction — to appoint one of their number to preside, provided 
that no person be allowed to serve in the office of president more than 
one year in any term of three years ; to ascertain the necessary sums 
of Money to be raised for the service of the united states, and to ap- 
propriate and apply the same for defraying the public expenses — to 
borrow money, or emit bills on the credit of the united states, trans- 
mitting every half year to the respective states an account of the sums 
of money so borrowed or emitted, — to build and equip a navy — to 
agree upon the number of land forces, and to make requisitions from 
each state for its quota, in proportion to the number of "white inhab- 
itants in such state ; which requisition shall be binding, and thereupon 
the legislature of each state shall appoint the regimental officers, raise 
the men and cloath, arm and equip them in a soldier like manner, at 
the expense of the united states ; and the officers and men so cloathed, 
armed and equipped shall march to the place appointed, and within 
the time agreed on by the united states in congress assembled : But 
if the united states in congress assembled shall, on consideration of 
circumstances judge proper that any state should not raise men, or 
should raise a smaller number than its quota, and that any other state 
should raise a greater number of men than the quota thereof, such 
extra number shall be raised, officered, cloathed, armed and equipped 



APPENDIX. 357 

in the same manner as the quota of such state, unless the legislature 
of such state shall judge that such extra number cannot be safely 
spared out of the same, in which case they shall raise officer, cloath, 
arm and equip as many of such extra number as they judge can be 
safely spared. And the officers and men so cloathed, armed and 
equipped, shall march to the place appointed, and within the time 
agreed on by the united states in congress assembled. 

The united states in congress assembled shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter 
into any treaties or alliances, nor coin money, nor regulate the value 
thereof, nor ascertain the sums and expenses necessary for the defence 
and welfare of the united states, or any of them, nor emit bills, nor 
borrow money on the credit of the united states, nor appropriate 
money, nor agree upon the number of vessels of war, to be built or 
purchased, or the number of land or sea forces to be raised, nor ap- 
point a commander in chief of the army or navy, unless nine states 
assent to the same : nor shall a question on any other point, except 
for adjourning from day to day be determined, unless by the votes 
of a majority of the united states in congress assembled. 

The Congress of the united states shall have power to adjourn to 
any time within the year, and to any place within the united states, so 
that no period of adjournment be for a longer duration than the space 
of six months, and shall publish the Journal of their proceedings 
monthly, except such parts thereof relating to treaties, alliances or 
military operations, as in their judgment require secrecy ; and the 
yeas and nays of the delegates of each state on any question shall be 
entered on the Journal, when it is desired by any delegate ; and the 
delegates of a state, or any of them, at his or their request shall be 
furnished with a transcript of the said Journal, except such parts as 
are above excepted, to lay before the legislatures of the several states. 

Article X. The committee of the states, or any nine of them, 
shall be authorized to execute, in the recess of congress, such of the 
powers of congress as the united states in congress assembled, by the 
consent of nine states, shall from time to time think expedient to vest 
them with ; provided that no power be delegated to the said committee, 
for the exercise of which, by the articles of confederation, the voice of 
nine states in the congress of the united states assembled is requisite. 

Article XL Canada acceding to this confederation, and joining 
in the measures of the united states, shall be admitted into, and en- 
titled to all the advantages of this union : but no other colony shall 
be admitted into the same, unless such admission be agreed to by nine 
states. 



358 APPENDIX. 

Article XII. All bills of credit emitted, monies borrowed and 
debts contracted by, or under the authority of congress, before the 
assembling of the united states, in pursuance of the present confed- 
eration, shall be deemed and considered as a charge against the united 
states, for payment and satisfaction whereof the said united states, and 
the public faith are hereby solemnly pledged. 

Article XIII. Every state shall abide by the determinations of 
the united states in congress assembled, on all questions which by this 
confederation is submitted to them. And the Articles of this confed- 
eration shall be inviolably observed by every state, and the union 
shall be perpetual ; nor shall any alteration at any time hereafter be 
made in any of them ; unless such alteration be agreed to in a congress 
of the united states, and be afterwards confirmed by the legislatures 
of every state. 

And Whereas it hath pleased the Great Governor of the World to 
incline the hearts of the legislatures we respectfully represent in con- 
gress, to approve of, and to authorize us to ratify the said articles of 
confederation and perpetual union. Know Ye that we the under- 
signed delegates, by virtue of the power and authority to us given for 
that purpose, do by these presents, in the name and in behalf of our 
respective constituents, fully and entirely ratify and confirm each and 
every of the said articles of confederation and perpetual union, and 
all and singular the matters and things therein contained : And we 
do further solemnly plight and engage the faith of our respective con- 
stituents, that they shall abide by the determinations of the united 
states in congress assembled, on all questions, which by the said con- 
federation are submitted to them. And that the articles thereof shall 
be inviolably observed by the states we respectively represent, and 
that the union shall be perpetual. In witness whereof we have here- 
unto set our hands in Congress. Done at Philadelphia in the state 
of Pennsylvania the 9th Day of July in the Year of our Lord, 1778, 
and in the 3d year of the Independence of America. 

T .V-. fl ff Jo . hn ^ ent T° c r *M On the part and behalf of the 

Josiah Bartlett, jum August 8th, ^ ^ £ f Ngw Hampshire . 

John Hancock, Francis Dana \ Qn h and behalf of the 

Samuel Adams, James Lovell, \ e f MassadluS etts-Bay. 

Elbridge Gerry, Samuel Holten, ) J 

William Ellery, John Collins, ) On the part and behalf of the 

Henry Marchant, / state of Rhode-Island and 

; Providence Plantations. 

Roger Sherman Titus Hosmer, i Qr h an(J behalf of the 

Samuel Huntington, Andrew Adam, J J f Connect icut. 

Oliver Wolcott, ) 

Jas Duane, William Duer, ) On the part and behalf of the 

Eras Lewis, Gouv* Morris, ) state of New- York. 



APPENDIX. 



359 



Jn° Witherspoon, 

Rob' Morris, 
Daniel Roberdeau, 
Jon a Bayard Smith, 

Tho. M'Kean, Feb. 12, 1779. 
John Dickinson, May 5, 1779. 

John Hanson, 
March 1st, 1781, 

Richard Henry Lee, 
John Banister, 
Thomas Adams, 

John Penn, 

July 21st, 1778, 

Henry Laurens, 
William Henry Drayton, 
Jn° Matthews, 

Jn° Walton, 

24th July, 1778, 



Nath 1 Scudder, 

William Clingan, 
Joseph Reed, 
22d July, 1778. 

Nicholas Van Dyke, 

Daniel Carroll, 
March 1st, 1781, 

Jn° Harvie, 
Francis Lightfoot 
Lee, 

Corns Harnett, 
Jn° Williams, 

Rich d Hutson, 
Tbos. Hey ward, jun. 

Edw d Telfair, 
Edw d Langworthy, 



On the part and behalf of the 
state of New-Jersey, Novem- 
ber 26th, 1778- 

On the part and behalf of the 
state of Pennsylvania. 

On the part and behalf of the 
state of Delaware. 

On the part and behalf of the 
state of Maryland. 

On the part and behalf of the 
state of Virginia. 

On the part and behalf of the 
state of North-Carolina. 

On the part and behalf of the 
state of South-Carolina. 

On the part and behalf of the 
state of Georgia. 



CONSTITUTION OF THE UNITED STATES. 

We, the people of the United States, in order to form a more per- 
fect union, establish justice, insure domestic tranquillity, provide for 
the common defence, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity, do ordain and es- 
tablish this constitution for the United States of America. 



ARTICLE I. 
Section 1. 
1-. All legislative powers herein granted shall be vested in a con- 
gress of the United States, which shall consist of a senate and house 
of representatives. 

Section 2. 

1. The house of representatives shall be composed of members 
chosen every second year by the people of the several states ; and the 
electors in each state shall have the qualifications requisite for elec- 
tors of the most numerous branch of the state legislature. 

2. No person shall be a representative who shall not have attained 
to the age-of twenty-five years, and been seven years a citizen of the 
United States, and who shall not, when elected, be an inhabitant of 
that state in which he shall be chosen. 

3. Representatives and direct taxes shall be apportioned among the 
several states which may be included within this Union, according to 



360 APPENDIX. 

their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three-fifths of all 
other persons. The actual enumeration shall be made within three 
years after the first meeting of the congress of the United States, and 
within every subsequent term of ten years, in such manner as they 
shall by law direct. The number of representatives shall not exceed 
one for every thirty thousand, but each state shall have at least one 
representative ; and until such enumeration shall be made, the state 
of New Hampshire shall be entitled to choose three ; Massachusetts, 
eight ; Rhode Island and Providence Plantations, one ; Connecticut, 
five; New- York, six; New Jersey, four; Pennsylvania, eight; Dela- 
ware, one; Maryland, six ; Virginia, ten ; North Carolina, five ; South 
Carolina, five ; and Georgia, three. 

4. When vacancies happen in the representation from any state, 
the executive authority thereof shall issue writs of election to fill such 
vacancies. 

5. The house of representatives shall choose their speaker and other 
officers, and shall have the sole power of impeachment. 

Section 3. 

1. The senate of the United States shall be composed of two sena- 
tors from each state, chosen by the legislature thereof, for six years ; 
and each senator shall have one vote. 

2. Immediately after they shall be assembled in consequence of the 
first election, they shall be divided as equally as may be into three 
classes. The seats of the senators of the first class shall be vacated 
at the expiration of the second year, of the second class at the ex- 
piration of the fourth year, and of the third class at the expiration of 
the sixth year, so that one- third may be chosen every second year ; 
and if vacancies happen, by resignation or otherwise, during the re- 
cess of the legislature of any state, the executive thereof may make 
temporary appointments until the next meeting of the legislature, 
which shall then fill such vacancies. 

3. No person shall be a senator who shall not have attained the 
age of thirty years, and been nine years a citizen of the United States, 
and who shall not, when elected, be an inhabitant of that state for 
which he shall be chosen. 

4. The vice-president of the United States shall be president of the 
senate, but shall have no vote unless they be equally divided. 

5. The senate shall choose their other officers, and also a president 
pro tempore in the absence of the vice-president, or when he shall ex- 
ercise the office of president of the United States. 



APPENDIX. 361 

6. The senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirmation. 
When the president of the United States is tried, the chief justice 
shall preside ; and no person shall be convicted without the concur- 
rence of two-thirds of the members present. 

7. Judgment in cases of impeachment shall not extend further than 
to removal from office, and disqualification to hold and enjoy any of- 
fice of honor, trust or profit under the United States ; but the party 
convicted shall, nevertheless, be liable and subject to indictment, trial, 
judgment and punishment, according to law. 

Section 4. 

1. The times, places and manner of holding elections for senators 
and representatives shall be prescribed in each state by the legisla- 
ture thereof; but the congress may at any time by law make or alter 
such regulations, except as to the place of choosing senators.' 

2. The congress shall assemble at least once in every year ; and 
such meeting shall be on the first Monday in December, unless they 
shall by law appoint a different day. 

Section 5. 

1. Each house shall be the judge of the elections, returns and 
qualifications of its own members, and a majority of each shall con- 
stitute a quorum to do business ; but a smaller number may adjourn 
from day to day, and may be authorized to compel the attendance of 
absent members, in such manner and under such penalties as each 
house may provide. 

2. Each house may determine the rule of its proceedings, punish 
its members for disorderly behavior, and with the concurrence of two- 
thirds, expel a member. 

3. Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may, in their 
judgment, require secrecy ; and the yeas and nays of the members 
of either house on any question shall, at the desire of one-fifth of those 
present, be entered on the journal. 

4. Neither house, during the session of congress, shall, without the 
consent of the other, adjourn for more than three days, nor to any 
other place than that in which the two houses shall be sitting. 

Section 6. 

1. The senators and representatives shall receive a compensation 
for their services, to be ascertained by law, and paid out of the treas- 



362 APPENDIX. 

ury of the United States. They shall, in all cases except treason, 
felony and breach of the peace, be privileged from arrest during their 
attendance at the session of their respective houses, and in going to 
and returning from the same ; and for any speech or debate in either 
house they shall not be questioned in any other place. 

2. No senator or representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority of 
the United States, which shall have been created, or the emoluments 
whereof shall have been increased, during such time ; and no person 
holding any office under the United States shall be a member of either 
house during his continuance in office. 

Section 7. 

1. All bills for raising revenue shall originate in the house of rep- 
resentatives ; but the senate may propose or concur with amendments 
as on other bills. 

2. Every bill which shall have passed the house of representa- 
tives and the senate shall, before it becomes a law, be presented to 
the president of the United States ; if he approve, he shall sign it ; 
but if not, he shall return it, with his objections, to that house in 
which it shall have originated ; who shall enter the objections at large 
on their journal, and proceed to reconsider it. If, after such recon- 
sideration, two-thirds of that house shall agree to pass the bill, it shall 
be sent, together with the objections, to the other house, by which it 
shall likewise be reconsidered ; and, if approved by two-thirds of 
that house, it shall become a law. But in all cases, the votes of both 
houses shall be determined by yeas and nays, and the names of the 
persons voting for and against the bill shall be entered on the journal 
of each house respectively. If any bill shall not be returned by the 
president within ten days (Sundays excepted) after it shall have been 
presented to him, the same shall be a law in like manner as if he had 
signed it, unless the congress, by their adjournment, prevent its re- 
turn, in which case it shall not be a law. 

3. Every order, resolution or vote, to which the concurrence of the 
senate and house of representatives may be necessary (except on a 
question of adjournment), shall be presented to the president of the 
United States ; and, before the same shall take effect, shall be ap- 
proved by him ; or, being disapproved by him, shall be repassed by 
two-thirds of the senate and house of representatives, according to 
the rules and limitations prescribed in the case of a bill. 



APPENDIX. 363 

Section 8. 
The congress shall have power : 

1. To lay and collect taxes, duties, imposts, and excises ; to pay the 
debts and provide for the common defence and general welfare of the 
United States ; but all duties, imposts, and excises shall be uniform 
throughout the United States. 

2. To borrow money on the credit of the United States. 

3. To regulate commerce with foreign nations, and among the sev- 
eral states, and with the Indian tribes. 

4. To establish an uniform rule of naturalization, and uniform laws 
on the subject of bankruptcies throughout the United States. 

5. To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures. 

6. To provide for the punishment of counterfeiting the securities 
and current coin of the United States. 

7. To establish post-offices and post-roads. 

8. To promote the progress of science and useful arts, by securing 
for limited times, to authors and inventors, the exclusive right to their 
respective writings and discoveries. 

9. To constitute tribunals inferior to the supreme court ; to define 
and punish piracies and felonies committed on the high seas, and of- 
fences against the law of nations. 

10. To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water. 

11. To raise and support armies ; but no appropriation of money 
to that use shall be for a longer term than two years. 

12. To provide and maintain a navy. 

13. To make rules for the government and regulation of the land 
and naval forces. 

14. To provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections, and repel invasions. 

15. To provide for organizing, arming and disciplining the militia, 
and for governing such part of them as may be employed in the ser- 
vice of the United States ; reserving to the states respectively the ap- 
pointment of the officers and the authority of training the militia ac- 
cording to the discipline prescribed by congress. 

16. To exercise exclusive legislation in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by cession of 
particular states, and the acceptance of congress, become the seat of 
government of the United States ; and to exercise like authority over 
all places purchased, by the consent of the legislature of the state in 



364 APPENDIX. 

which the same shall be, for the erection of forts, magazines, arsenals, 
dockyards, and other needful buildings ; and 

17. To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by this constitution in the government of the United States, or 
in any department or officer thereof. 

Section 9. 

1. The migration or importation of such persons as any of the states 
now existing shall think proper to admit, shall not be prohibited by 
the congress prior to the year one thousand eight hundred and eight ; 
but a tax or duty may be imposed on such importation not exceeding 
ten dollars for each person. 

2. The privilege of the writ of habeas corpus shall not be suspended, 
unless when, in cases of rebellion or invasion, the public safety may 
require it. 

3. No bill of attainder, or ex post facto law shall be passed. 

4. No capitation or other direct tax shall be laid, unless in propor- 
tion to the census or enumeration herein before directed to be taken. 

5. No tax or duty shall be laid on any articles exported from any 
state. No preference shall be given by any regulation of commerce 
or revenue to the ports of one state over those of another ; nor shall 
vessels bound to or from one state be obliged to enter, clear or pay 
duties in another. 

6. No money shall be drawn from the treasury but inconsequence 
of appropriations made by law ; and a regular statement and account 
of the receipts and expenditures of all public money shall be published 
from time to time. 

7. No title of nobility shall be granted by the United States ; and 
no person holding any office of profit or trust under them shall, with- 
out the consent of the congress, accept of any present, emolument, 
office, or title of any kind whatever, from any king, prince, or foreign 
state. 

Section 10. 

1. No state shall enter into any treaty, alliance or confederation ; 
grant letters of marque and reprisal ; coin money ; emit bills of credit ; 
make any thing but gold and silver coin a tender in payment of debts ; 
pass any bill of attainder, ex post facto law, or law impairing the ob- 
ligation of contracts ; or grant any title of nobility. 

2. No state shall, without the consent of the congress, lay any im- 
posts or duties on imports or exports, except what may be absolutely 
necessary for executing its inspection laws, and the net produce of all 



APPENDIX. 365 

duties and imposts laid by any state on imports or exports shall be 
for the use of the treasury of the United States, and all such laws 
shall be subject to the revision and control of the congress. No 
state shall, without the consent of the congress, lay any duty of ton- 
nage, keep troops or ships of war in time of peace, enter into any 
agreement or compact with another state, or with a foreign power, or 
engage in war, unless actually invaded, or in such imminent danger as 
will not admit of delay. 

ARTICLE II. 

Section 1. 

1. The executive power shall be vested in a president of the United 
States of America. He shall hold his office during the term of four 
years ; and, together with the vice-president chosen for the same 
term, be elected as follows : 

2. Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors equal to the whole number 
of senators and representatives to which the state may be entitled in 
the congress; but no senator or representative, or person holding an 
office of trust or profit under the United States, shall be appointed an 
elector. 

3. [The electors shall meet in their respective states, and vote by 
ballot for two persons, of whom one at least shall not be an inhab- 
itant of the same state with themselves. And they shall make a list of 
all the persons voted for, and of the number of votes for each ; which 
list they shall sign and certify, and transmit sealed to the seat of gov- 
ernment of the United States, directed to the president of the senate. 
The president of the senate shall, in the presence of the senate and 
house of representatives, open all the certificates, and the votes shall 
then be counted. The person having the greatest number of votes 
shall be the president, if such number be a majority of the whole 
number of electors appointed ; and if there be more than one who 
have such majority, and have an equal number of votes, then the 
house of representatives shall immediately choose, by ballot, one of 
them for president ; and if no person have a majority, then, from the 
five highest on the list, the said house shall, in like manner, choose 
the president. But in choosing the president, the vote shall be taken 
by states, the representation from each state having one vote ; a 
quorum for this purpose shall consist of a member or members from 
two-thirds of the states, and a majority of all the states shall be nec- 
essary to a choice. In every case, after the choice of the president, 
the person having the greatest number of votes of the electors shall 



366 APPENDIX. 

be the vice-president. But if there should remain two or more who 
have equal votes, the senate shall choose from them, by ballot, the 
vice-president.] 1 

4. The congress may determine the time of choosing the electors, 
and the day on which they shall give their votes, which day shall be 
the same throughout the United States. 

5. No person, except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this constitution, shall be 
eligible to the office of president ; neither shall any person be eligible 
to that office who shall not have attained to the age of thirty-five years, 
and been fourteen years a resident within the United States. 

6. In case of the removal of the president from office, or of his 
death, resignation, or inability to discharge the powers and duties of 
the said office, the same shall devolve on the vice-president ; and the 
congress may, by law, provide for the case of removal, death, resigna- 
tion or inability, both of the president and vice-president, declaring 
what officer shall then act as president ; and such officer shall act ac- 
cordingly, until the disability be removed, or a president shall be 
elected. 

7. The president shall, at stated times, receive for his services a 
compensation which shall neither be increased nor diminished during 
the period for which he shall have been elected ; and he shall not re- 
ceive within that period any other emolument from the United States, 
or any of them. 

8. Before he enter on the execution of his office, he shall take the 
following oath or affirmation : 

" I do solemnly swear (or affirm) that I will faithfully execute the 
office of president of the United States ; and will, to the best of my 
ability, preserve, protect and defend the constitution of the United 
States." 

Section 2. 

1. The president shall be commander-in-chief of the, army and 
navy of the United States, and of the militia of the several states, 
when called into the actual service of the United States. He may 
require the opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the duties of their 
respective offices ; and he shall have power to grant reprieves and 
pardons for offences against the United States, except in cases of im- 
peachment. 

2. He shall have power, by and with the advice and consent of the 
senate, to make treaties, provided two-thirds of the senators present 

1 This paragraph has been superseded and annulled by the 12th Amendment. 



APPENDIX. 367 

concur ; and he shall nominate, and by and with the advice and con- 
sent of the senate shall appoint, ambassadors, other public ministers 
and consuls, judges of the supreme court, and all other officers of the 
United States whose appointments are not herein otherwise provided 
for, and which shall be established by law. But the congress may, 
by law, vest the appointment of such inferior officers as they think 
proper, in the president alone, in the courts of law, or in the heads 
of departments. 

3. The president shall have power to fill up all vacancies that 
may happen during the recess of the senate, by granting commissions 
which shall expire at the end of their next session. 

Section 3. 

1. He shall, from time to time, give to the congress information of 
the state of the Union, and recommend to their consideration such 
measures as he shall judge necessary and expedient. He may, on 
extraordinary occasions, convene both houses, or either of them ; and 
in case of disagreement between them, with respect to the time of 
adjournment, he may adjourn them to such time as he shall think 
proper. He shall receive ambassadors and other public ministers. 
He shall take care that the laws be faithfully executed ; and shall 
commission all the officers of the United States. 

Section 4. 

1. The president, vice-president and all civil officers of the United 
States, shall be removed from office on impeachment for, and convic- 
tion of treason, bribery or other high crimes and misdemeanors. 

ARTICLE III. 

Section 1. 

1. The judicial power of the United States shall be vested in one 
supreme court, and in such inferior courts as the congress may, from 
time to time, ordain and establish. The judges, both of the supreme 
and inferior courts, shall hold their offices during good behavior ; and 
shall, at stated times, receive for their services a compensation, which 
shall not be diminished during their continuance in office. 

Section 2. 

1. The judicial power shall extend to all cases in law and equity 
arising under this constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority ; to all 



368 APPENDIX. 

cases affecting ambassadors, other public ministers and consuls; to 
all cases of admiralty and maritime jurisdiction; to controversies to 
which the United States shall be a party ; to controversies between 
two or more states ; between a state and citizens of another state ; 
between citizens of different states, between citizens of the same state 
claiming lands under grants of different states, and between a state, 
or the citizens thereof, and foreign states, citizens or subjects. 

2. In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a state shall be party, the supreme court 
shall have original jurisdiction. In all the other cases before men- 
tioned, the supreme court shall have appellate jurisdiction, both as to 
law and fact, with such exceptions and under such regulations as the 
congress shall make. 

3. The trial of all crimes, except in cases of impeachment, shall be 
by jury, and such trial shall be held in the state where the said crimes 
shall have been committed ; but when not committed within any state, 
the trial shall be at such place or places as the congress may by law 
have directed. 

Section 3. 

1. Treason against the United States shall consist only in levying 
war against them or in adhering to their enemies, giving them aid 
and comfort. No person shall be convicted of treason, unless on the 
testimony of two witnesses to the same overt act, or on confession in 
open court. 

2. The congress shall have power to declare the punishment of 
treason ; but no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attainted. 

ARTICLE IV. 

Section 1. 

1. Full faith and credit shall be given in each state to the public 
acts, records and judicial proceedings of every other state ; and the 
congress may, by general laws, prescribe the manner in which such 
acts, records and proceedings shall be proved, and the effect thereof. 

Section 2. 

1. The citizens of each state shall be entitled to all privileges and 
immunities of citizens in the several states. 

2. A person charged in any state with treason, felony or other 
crime, who shall flee from justice, and be found in another state, shall, 
on demand of the executive authority of the state from which he fled, 



APPENDIX. 369 

be delivered up, to be removed to the state having jurisdiction of the 
crime. 

3. No person held to service or labor in one state under the laws 
thereof, escaping into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor ; but shall 
be delivered up on claim of the party to whom such service or labor 
may be due. 

Section 3. 

1. New states may be admitted by the congress into this Union; 
but no new state shall be formed or erected within the jurisdiction of 
any other state, nor any state be formed by the junction of two or 
more states or parts of states, without the consent of the legislatures 
of the states concerned, as well as of the congress. 

2. The congress shall have power to dispose of, and make all need- 
ful rules and regulations respecting, the territory or other property 
belonging to the United States ; and nothing in this constitution shall 
be so construed as to prejudice any claims of the United States, or of 
any particular state. 

Section 4. 

1. The United States shall guarantee to every state in this Uniou 
a republican form of government, and shall protect each of them 
against invasion ; and, on application of the legislature, or of the ex- 
ecutive (when the legislature cannot be convened), against domestic 
violence. ' 

ARTICLE V. 

1. The congress, whenever two-thirds of both houses shall deem it 
necessary, shall propose amendments to this constitution ; or, on the 
application of the legislatures of two-thirds of the several states, shall 
call a convention for proposing amendments, which, in either case, 
shall be valid to all intents and purposes, as part of this constitution, 
when ratified by the legislatures of three-fourths of the several states, 
or by conventions in three-fourths thereof, as the one or the other 
mode of ratification may be proposed by the congress ; provided that 
no amendment, which may be made prior to the year one thousand 
eight hundred and eight, shall in any manner affect the first and fourth 
clauses in the ninth section of the first article ; and that no state, 
without its consent, shall be deprived of its equal suffrage in the 
senate. 

ARTICLE VI. 

1. All debts contracted and engagements entered into before the 
adoption of this constitution shall be as valid against the United States 
under this constitution, as under the confederation. 
24 



370 APPENDIX. 

2. This constitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made, or which shall 
be made, under the authority of the United States, shall be the su- 
preme law of the land ; and the judges in every state shall be bound 
thereby, anything in the constitution or laws of any state to the con- 
trary notwithstanding. 

3. The senators and representatives before mentioned, and the 
members of the several state legislatures, and all executive and judi- 
cial officers, both of the United States and of the several states, shall 
be bound by oath or affirmation to support this constitution ; but no 
religious test shall ever be required as a qualification to any office or 
public trust under the United States. 

ARTICLE VII. 

1. The ratification of the conventions of nine states shall be suffi- 
cient for the establishment of this constitution between the states so 
ratifying the same. 

Done in convention by the unanimous consent of the states present, the 
seventeenth day of September, in the year of our Lord one thousand seven 
hundred and eighty-seven, and of the Independence of the United States 
of America the twelfth. In witness whereof we have hereunto sub- 
scribed our names. 



William Jackson, Secretary. 



GEORGE WASHINGTON, 

President, and Deputy from Virginia. 



AMENDMENTS TO THE CONSTITUTION OF THE 
UNITED STATES. 

[The following amendments were proposed at the first session of 
the first congress of the United States, which was begun and held at 
the city of New York on the 4th of March, 1789, and were adopted 
by the requisite number of states. Laws of the U. S. vol. 1, page 
82. ' 

[The following preamble and resolution preceded the original prop- 
osition of the amendments. They will be found in the journals of 
the first session of the first congress.] 



APPENDIX. 371 



[CONGRESS OF THE UNITED STATES. 

Begun and held at the city of New York, on Wednesday the Jfih day of 

March, 1789. 

The conventions of a number of the states having, at the time of 
their adopting the constitution, expressed a desire, in order to prevent 
misconstruction or abuse of its powers, that further declaratory and 
restrictive clauses should be added, and as extending the ground of 
public confidence in the government will best insure the beneficent 
ends of its institution: 

Resolved, By the Senate and House of Representatives of the United States of 
America, in congress assembled, two-thirds of both houses concurring, that the 
following articles be proposed to the legislatures of the several states, as amend- 
ments to the constitution of the United States; all or any of which articles, when 
ratified by three-fourths of the said legislatures, to be valid to all intents and pur- 
poses, as part of the said constitution, namely : ] 

ARTICLE I. 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 
speech or of the press ; or the right of the people peaceably to assem- 
ble, and to petition the government for a redress of grievances. 

ARTICLE II. 
A well regulated militia being necessary to the security of a free 
state, the right of the people to keep and bear arms shall not be in- 
fringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house with- 
out the consent of the owner, nor in time of war but in a manner to 

be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, papers 
and effects, against unreasonable searches and seizures, shall not be 
violated ; and no warrants shall issue but upon probable cause, sup- 
ported by oath or affirmation, and particularly describing the place to 
be searched, and the persons or things to be seized. 

ARTICLE V. 
No person shall be held to answer for a capital or otherwise in- 
famous crime, unless on a presentment or indictment of a grand jury, 
except in cases arising in the land or naval forces, or in the militia, 



372 APPENDIX. 

when in actual service in time of war or public danger ; nor shall any 
person be subject for the same offence to be twice put in jeopardy of 
life or limb; nor shall be compelled, in any criminal case, to be a 
witness against himself, nor be deprived of life, liberty, or property, 
without due process of law ; nor shall private property be taken for 
public use without just compensation. 

ARTICLE VI. 
In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the state and district 
wherein the crime shall have been committed, which district shall 
have been previously ascertained by law ; and to be informed of the 
nature and cause of the accusation ; to be confronted with the wit- 
nesses against him ; to 'have compulsory process for obtaining wit- 
nesses in his favor, and to have the assistance of counsel for his de- 
fence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved ; and no 
fact tried by a jury shall be otherwise reexamined in any court of the 
United States, than according to the rules of the common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

ARTICLE IX. 
The enumeration in the constitution of certain rights shall not be 
construed to deny or disparage others retained by the people. 

ARTICLE X. 
The powers not delegated to the United States by the constitution, 
nor prohibited by it to the states, are reserved to the states respect- 
ively, or to the people. 

[The following amendment was proposed at the second session of 
the third congress. It is printed in the Laws of the United States, 
vol. 1, p. 73, as Article XL] 

ARTICLE XL 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one of the United States by citizens of another state, or by citizens or 
subjects of any foreign state. 



APPENDIX. 378 

[The three following sections were proposed as amendments at the 
first session of the eighth congress. They are printed in the Laws of 
the United States as Article XII.] 

ARTICLE XII. 

1. The electors shall meet in their respective states, and vote by 
ballot for president and vice-president, one of whom at least shall not 
be an inhabitant of the same state with themselves. They shall name 
in their ballots the person voted for as president, and in distinct bal- 
lots the person voted for as vice-president ; and they shall make dis- 
tinct lists of all persons voted for as president, and of all persons voted 
for as vice-president, and of the number of votes for each ; which lists 
they shall sign and certify, and transmit sealed to the seat of the gov- 
ernment of the United States, directed to the president of the senate. 
The president of the senate shall, in the presence of the senate and 
house of representatives, open all the certificates, and the votes shall 
then be counted. The person having the greatest number of votes 
for president shall be the president, if such number be a majority of 
the whole number of electors appointed ; and if no person have such 
majority, then from the persons having the highest numbers, not ex- 
ceeding three, on the list of those voted for as president, the house of 
representatives shall choose immediately, by ballot, the president. 
But in choosing the president, the votes shall be taken by states, the 
representation from each state having one vote ; a quorum for this 
purpose shall consist of a member or members from two-thirds of the 
states, and a majority of all the states shall be necessary to a choice. 
And if the house of representatives shall not choose a president 
whenever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the vice-president shall act 
as president, as in the case of the death or other constitutional disa- 
bility of the president. 

2. The person having the greatest number of votes as vice-president 
shall be the vice-president, if such number be a majority of the whole 
number of electors appointed, and if no person have a majority, then 
from the two highest numbers on the list the senate shall choose the 
vice-president. A quorum for the purpose shall consist of two-thirds 
of the whole number of senators, and a majority of the whole number 
shall be necessary to a choice. 

3. But no person constitutionally ineligible to the office of presi- 
dent shall be eligible to that of vice-president of the United States. 



374 APPENDIX. 

ARTICLE XIII.i 

Section 1. 

Neither slavery nor involuntary servitude, except as a punishment 
for crime, whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their jurisdiction. 

Section 2. 

Congress shall have power to enforce this article by appropriate 
legislation. 

ARTICLE XIV. 2 

Section 1. 

All persons born or naturalized in the United States, and subject to 
the jurisdiction thereof, are citizens of the United States and of the 
state wherein they reside. No state shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of the 
United States ; nor shall any state deprive any person of life, liberty 
or property without due process of law, nor deny to any person within 
its jurisdiction the equal protection of the laws. 

Section 2. 

Kepresentatives shall be apportioned among the several states ac- 
cording to their respective numbers, counting the whole number of 
persons in each state, excluding Indians not taxed. But when the 
right to vote at any election for the choice of electors for president and 
vice-president of the United States, representatives in congress, the 
executive and judicial officers of a state, or the members of the legis- 
lature thereof, is denied to any of the male inhabitants of such state, 
being twenty-one years of age, and citizens of the United States, or in 
any way abridged, except for participation in rebellion or other crime, 
the basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole num- 
ber of male citizens twenty-one years of age in such state. 

Section 3. 

No person shall be a senator or representative in congress, or elector 
of president and vice-president, or hold any office, civil or military, 
under the United States, or under any state, who, having previously 

1 Proposed by Congress February 1, 1865. Ratification announced by Secre- 
tary of State, December 18, 1865. 

2 Proposed by Congress June 16, 1866. Ratification announced by Secretary 
of State, July 28, 1868. 



APPENDIX. 375 

taken an oath as a member of congress, or as an officer of the United 
States, or as a member of any state legislature, or as an executive or 
judicial officer of any state, to support the constitution of the United 
States, shall have engaged in insurrection or rebellion against the 
same, or given aid or comfort to the enemies thereof. But congress 
may, by a vote of two-thirds of each house, remove such disability. 

Section 4. 

The validity of the public debt of the United States authorized by 
law, including debts incurred for payment of pensions and bounties 
for services in suppressing insurrection or rebellion, shall not be ques- 
tioned. But neither the United States nor any state shall assume or 
pay any debt or obligation incurred in aid of insurrection or rebellion 
against the United States, or any claim for the loss or emancipation 
of any slave ; but all such debts, obligations, and claims shall be held 
illegal and void. 

Section 5. 

The congress shall have power to enforce, by appropriate legisla- 
tion, the provisions of this article. 

AETICLE XV.i . 

Section 1. 

The right of citizens of the United States to vote shall not be de- 
nied or abridged by the United States or by any state on account of 
race, color, or previous condition of servitude. 

Section 2. 

The congress shall have power to enforce this article by appropri- 
ate legislation. 

1 Proposed by Congress February 27, 1869. Ratification announced by Secre- 
tary of State, March 30, 1870. , 



376 



APPENDIX. 



JUSTICES OF THE SUPREME COURT OF THE 
UNITED STATES. 

CHIEF JUSTICES. 



John Jay 
John Eutledge . 
Oliver Ellsworth . 
John Marshall . 
Roger B. Taney 
Salmon P. Chase 
Morrison R. Waite 
Melville W. Fuller 



Appointed from. 



N. Y. 

S. C. 
Conn. 

Va. 

Md. 
Ohio. 
Ohio. 

111. 



Date of 
Appointment. 



1789 
1795 
1796 
1801 
1836 
1864 
1874 
1888 



End of 

Service. 



1795 1 
1795 2 
1800 1 
1835 3 
1864 3 
1873 3 
1888 3 



1 Resigned. 

2 Served one term. Not confirmed. 

3 Died. 

4 Now on the bench. 



APPENDIX. 



377 



ASSOCIATE JUSTICES. 





Appointed from. 


Date op 

Appointment. 


End of 
Service. 


John Rutledge .... 


S.C. 


1789 


1791 1 


William Cushing 








Mass. 


1789 


1810 3 


James Wilson 














Pa. 


1789 


1798 3 


Thomas Johnson 














Md. 


1791 


1793 1 


John Blair 














Va. 


1789 


1796 1 


James Iredell 














N. C. 


1790 


1799 3 


William Paterson . 














N.J. 


1793 


1806 3 


Samuel Chase . 














Md. 


1796 


1811 3 


Bushrod Washington 














Va. 


1798 


1829 3 


Alfred Moore 














N. C. 


1799 


1804 1 


William Johnson . 














S.C. 


1804 


1834 3 


Thomas Todd . 














Ky. 


1807 


1826 1 


Brockholst Livingston 














N. Y. 


1806 


1823 3 


Gabriel Duval . 














Md. 


1811 


1836 ! 


Joseph Story . 














Mass. 


1811 


1845 3 


Smith Thompson 














N. Y. 


1823 


1844 3 


Robert Trimble 














Ky. 


1826 


1829 3 


John McLean 














, Ohio. 


1829 


1861 3 


Henry Baldwin 














Pa. 


1830 


1846 3 


James M. Wayne 














Ga. 


1835 


1867 3 


Philip P. Barbour . 














Va. 


1836 


1841 3 


John Catron 














Tenn. 


1837 


1865 3 


John McKinley 














Ala. 


1837 


1852 3 


Peter V. Daniel . 














Va. 


1841 


I860 3 


Samuel Nelson 














N. Y. 


1845 


1872 i 


Levi Woodbury . 














N. H. 


1845 


1851 3 


Robert C. Grier 














Pa. 


1846 


1870 1 


Benjamin R. Curtis 














Mass. 


1851 


1857 1 


John A. Campbell . 














La. 


1853 


1861 1 


Nathan Clifford . 














Me. 


1858 


1881 3 


Noah H. Swayne . 














Ohio. 


1862 


1881 1 


Samuel F. Miller 














Iowa. 


1862 


4 


David Davis . 














111. 


1862 


1877 i 


Stephen J. Field 














Cal. 


1863 


4 


William Strong 














Pa. 


1870 


1880 i 


Joseph P. Bradley 














N.J. 


1870 


4 


Ward Hunt . 














N. Y. 


1872 


1882 i 


John M. Harlan . 














Ky. 


1877 


4 


William B. Woods 














Ga. 


1880 


1887 3 


Horace Gray 














Mass. 


1881 


4 


Stanley Matthews . 














Ohio. 


1881 


4 


Samuel Blatchford 














N. Y. 


1882 


4 


Lucius Q. C. Lamar 








Miss. 


1888 


4 



1 Resigned. 

3 Died. 

4 Now on the bench. 



INDEX. 



Adams, John, minister to England, 57 ; 
reference to, 62 ; Vice-President, 97 ; 
account of terrorism excited by 
Genet, 122; President, 124; charac- 
ter of, 124 ; jealous of Hamilton, 
129; expands constitutional powers, 
129 ; his "midnight judges," 259. 

Adams, John Quincy, elected Presi- 
dent, 146; character and administra- 
tion, 146; in Congress, 192. 

Adams, Samuel, reference to, 39, 62, 
84. 

Alabama case, arbitration, 219. 

Alabama, secedes, 203. 

Alien and Sedition Laws, 125; uncon- 
stitutionality of, 125 ; prosecutions 
under sedition laws, 126. 

Amendments to Constitution, first ten, 
100 ; purpose of, 101, 294; eleventh, 
254; twelfth, 134; thirteenth, 206; 
object of latest amendments, 102; 
construed by the court, 281 ; to pre- 
vent interference with slavery pro- 
posed, 203; benefits of power to 
make, 318. 

Amnesty proclamation, 211. 

Anti-Federal party, formed, 107 ; Jef- 
ferson its leader, 107. 

Arkansas, secedes, 203 ; reconstruction 
in, 209. 

Arthur, Chester A., vetoes river and 
harbor bill, 143 ; his administration, 
221. 

Articles of Confederation, text of, 351 ; 
step towards constitution, 6 ; forma- 
tion of, 47 ; ratification of, delayed, 
48 ; provisions of, 49 ; defects of, 51 ; 
good features of, 51, 53 ; difficulty in 
forming, 53. 



Bank of the United States, consti- 
tutional argument for and against, 
112; formed, 115; rechartered, 141 ; 
charter vetoed by President Jackson, 
150; by President Tyler, 167; case 
of, in supreme court, 267. 

Bill of rights, why not in constitution, 
77. 

Blockades, English and French, 136. 

Boston port bill, 38. 

Bradley, Justice, quoted, 278. 

British influence in first administration, 
117. 

Bryce's "American Commonwealth," 
note upon, 17 ; referred to, 342. 

Buchanan, James, President, 203, 204. 

Bunker Hill, battle of, 41. 

Burke, Edmund, quoted, 27, 33, 36. 

Burr, Aaron, scheme of, 77 ; Vice-Presi- 
dent, 134. 

Cabinet, authority for, 72. 

Calhoun, John C, favors protective 
tariff, 141 ; opposes it, 152; opposes 
spoils system, 150 ; favors nullifica- 
tion, 162; desires supreme court to 
decide as to constitutionality of pro- 
tective tariff, 160; resigns as Vice- 
President and becomes senator, 162; 
threatened by President Jackson, 162 ; 
leader of pro-slavery system of con- 
stitutional construction, 165; refer- 
ence to, 172. 

California, admitted as a free state, 
193 ; discovery of gold in, 193. 

Canada, why no union with, 325. 

Carpet-bag governments, 217. 

Catron, Justice, 275. 

Charters, Colonial, 20, 21. 



380 



INDEX. 



Chase, Salmon P., Chief Justice, 243 ; 
quoted, 280. 

Chase, Samuel, Justice, quoted, 257, 
258 ; impeached and acquitted, 258. 

Church and State, 337. 

Citizenship, 216. 

Civil rights bill, 214; constitutionality 
of, 215. 

Civil rights cases in the supreme court, 
293. 

Clay, Henry, candidate for President in 
124, 146; favors tariff, internal im- 
provements, 146 ; favors compromise 
to avert nullification, 162; defeated 
in 1844, 169, 192; a constructive 
statesman, 172. 

Cleveland, Grover, reference to, 9, 117; 
his administration, 221. 

Clinton, George, opposes ratification of 
constitution, 87 ; remarks of, in N. Y. 
convention, 91 ; desires a second con- 
stitutional convention, 98. 

Colonies, simple systems of, 3 ; charters 
freely given for first, 3 ; prosperity 
of, 3 ; self-government in, 3 ; easily 
changed to states, 4 ; allegiance of, to 
Great Britain, 18 ; furnish soldiers 
in French war, 1 8 ; separate govern- 
ments of, 19 ; league of, in New Eng- 
land, 19 ; congress of delegates of, at 
Albany, 1 9 ; union between, 20 ; sim- 
ilar governments of, 20; laws of, re- 
pugnant to those of England, void, 
21 ; charter, proprietary and provin- 
cial governments of, 20 ; laws of, 23 ; 
executive, legislative, and judicial de- 
partments of, 23 ; James II. attempts 
to suppress charters of, 23 ; neglected 
by England, 23, 24; friends of, in 
England, 23 ; liberal use of their 
powers, 23 ; law learning in, 23, 27 ; 
trade relations of, 23; evade re- 
straints upon trade, 23 ; civil corpo- 
rations at first become political gov- 
ernments, 23 ; foundation of claim to 
deprive them of charters, 24 ; tenure 
of land in, 26; education in, 26; 
slave-holders in, their love of liberty, 
27 ; growth of religious liberty in, 27 ; 
of civil liberty, 33 ; taxation of, by 
Parliament, 33; stamp act, congress 



of, 34 ; Lord Chatham's defence of, 
35 ; become states, 42, 45. 

Commerce, effect of the provision to 
regulate, 298. 

Commerce, reciprocal advantages of 
foreign, 117 ; interstate, 221. 

" Common sense," Paine's, 41. 

Compromise, respecting tariff, 162 ; 
Missouri, 189 ; slavery, 193. 

Confederacy, continental, of the U. S., 
weakness of, 53-55 ; attempts to 
strengthen, 53 ; refusal of states to 
respect, 54. 

Confederate States of America, formed 
by eleven seceding states, 203. 

Congress, of colonies in 1754, 19; first 
continental, 37, 39 ; second, 40 ; sort 
of government existing under, 40, 48 ; 
weakness of confederate, 57 ; dissen- 
sions in, 58 ; end of confederate con- 
gress, 96. 

Congress of U. S., reasons for two 
chambers, 69, 313; powers of, dis- 
cussed and enumerated in constitu- 
tional convention, 75-80 ; first, under 
constitution, 97 ; acts of, 98, 99 ; dis- 
cusses extent of its powers, 112; 
second Congress, 117 ; power of, with 
respect to treaties, 124, 135; declares 
war against England, 138 ; practice 
with respect to river and harbor ap- 
propriations, 142 ; power of, with re- 
spect to a protective tariff, 154 ; an- 
nexes Texas by joint resolution, 169 ; 
answer of, as to power over slavery, 
182; takes charge of reconstruction, 
214 ; power to regulate jurisdiction 
and organization of supreme court, 
241 ; as affected by the thirteenth, 
fourteenth, and fifteenth amend- 
ments, 281 ; advantage of separating 
legislative from other departments, 
312. 

Connecticut, charter of colony made 
state constitution, 21 ; religious lib- 
berty developed in, 31 ; delegates to 
constitutional convention, 64; con- 
stitution of 1639, 64 ; ratifies consti- 
tution, 83; attitude in war of 1812, 
139 ; delegates of, to Hartford Con- 
vention, 139. 



INDEX. 



381 



Constitution, of states easily made, 4 ; 
definition, 6 ; written and unwritten, 
6 ; modern, 7 ; of Great Britain, 7, 
344. 

Constitution of U. S., text of, 351 ; for- 
eign criticism of, 14 ; number of pow- 
ers, 15; powers of, expand, 14; ex- 
perimental at first, 1 5 ; suggestions 
of, 47, 59 ; necessary for regulation 
of commerce, 56; to suppress paper 
money, 57 ; to protect contracts, 58 ; 

[■ to suppress insurrections, 61 ; forma- 
tion of, recommended by commis- 
sioners of five states, 60 ; opposition 
of Congress to, 60 ; convention to 
frame, 62-82 ; ratification of, 83-96 ; 
ten amendments adopted, 100 ; elev- 
enth amendment, 254; twelfth, 134; 
thirteenth, 206 ; fourteenth, 214; fif- 
teenth, 216; influence of limitations 
of, upon political careers, 172, 342; 
whether compact or government, 155- 
159, 278; construction of latest 
amendments, 281 ; does not add to 
or create privileges and immunities, 
289. 

Constitutional Convention of U. S., 
New York proposes and then recedes, 
59 ; Virginia takes action leading to, 
59 ; recommended by commissioners 
of five states, 60; Congress reluctantly 
approves, 60; states appoint dele- 
gates, tbeir powers, 61 ; meets at 
Philadelphia, 62 ; Rhode Island ab- 
sent, 61 ; members of, 62 ; Washing- 
ton presides, 62 ; rules of, 64 ; Vir- 
ginia proposes national plan, 64, 66 ; 
discussion of, 66 ; report of commit- 
tee, 66 ; large states favor it, small 
states oppose, 67 ; Paterson proposes 
to amend Articles of Confederation, 
68 ; two plans, one to make new con- 
stitution, another to amend old, 68 ; 
government by people or compact of 
states, 68 ; threats of disruption, 68 ; 
Franklin proposes compromise, 69 ; 
states to be represented in Senate, 
people in House, 69 ; Congress to 
have two chambers, reasons for, 69 ; 
executive, of one or more persons, 
70 ; how to be chosen, 71 ; confidence 



in and distrust of people, 71 ; Presi- 
dent, his duties, 71, 72; cabinet or 
privy council, 71, 72 ; Vice-President, 
71; judiciary department, 73; juris- 
diction of, 73 ; powers conferred 
upon and devised to Congress, 75- 
80; powers denied to the states, 77, 

78 ; U. S.to have none but delegated 
powers, 77 ; why bill of rights was 
not inserted, 77 ; slavery discussed, 
78, 80 ; imports taxed, exports free, 

79 ; slaves imports, 80 ; counted for 
taxation and representation, 78 ; reg- 
ulation of commerce, 80; no property 
qualification for office, 81 ; revision, 
the word " national " stricken out, 
81 ; completed, 81 ; letter to Con- 
gress, 81 ; failure of efforts to con- 
vene a second convention, 98. 

Contracts, obligation of, not to be im- 
paired, litigation respecting, 300. 

Corporations, usefulness of, 325. 

Cotton, not raised in S. C, in 1789, 
152. 

Crawford, William H., reference to, 
146. 

Cumberland Road, 142. 

Daniel, Justice, opinions of, 273. 

Declaration of Independence, meaning 
of, 43 ; reference to, 38, 45, 61. 

Delaware, proprietary government of, 
20 ; religious liberty in, 32 ; adheres 
to Union in the rebellion, 203. 

Demagogues, 317. 

Democracies, limited and unlimited, 
344. 

Democratic party, 116, 123, 146, 192. 

Departments of the government, 13 ; of 
State, Treasury, and War, created, 
102; influence of the judicial upon 
executive and legislative, 230 ; checks 
upon each other, 312 ; executive, leg- 
islative, and judicial, practically not 
absolutely separate, 318. 

De Tocqueville, reference to, 19, 171. 

Division of powers of government, 309. 

Douglas, Stephen A., introduces Kan- 
sas-Nebraska bill, 196; presidential 
candidate, 203. 

Dred Scott case, reference to, 119, 181, 



382 



INDEX. 



185, 200, 201, 202, 206, 215, 234, 274, 
282. 
Due process of law, significance of, 296. 

Electoral Commission, 231. 

Ellsworth, Oliver, 63 ; chief justice, 243 ; 
remarks upon duty of courts to de- 
clare unconstitutional law void, 251 ; 
drafts judiciary act, 253. 

Emancipation proclamation, 203 ; scope 
of, 203. 

Embargoes, 136; effect of, 136 ; policy 
of, 137. 

Expenses of government first year, 99. 

Exports, the South opposes taxation 
upon, 79 ; not to be taxed, 79. 

Extent of territory, a condition of 
safety, 316, 321. 

"Federalist," the, writers of, 88; in- 
fluence and rank of, 88. 

Federal party comes into existence, 
107 ; Hamilton leader of, 107 ; defeat 
of, 128 ; character of, 129-133 ; strong 
in New England, 139 ; hostile to war 
of 1812, 139 ; downfall of, 144. 

Females, citizens, not voters, 289. 

Field, Justice, quoted, 287. 

Fillmore, Millard, President, 170. 

Florida, acquisition of, 144; secedes, 203. 

Food and clothing supply, 331. 

France, influence of philosophers of, 6 ; 
loses possessions in America, 18 ; war 
with, instructive to colonists, 37 ; 
agent of, declares U. S. has no gov- 
ernment, 55 ; U. S., troubles with, 
120-138; sympathy with revolution 
in, 121; aid of, in American revolu- 
tion, 120; seeks to make U. S. her 
ally against England, 121, 122; of- 
fended at our neutrality, 121 ; in- 
stigates popular opposition to Wash- 
ington's administration, 122; mer- 
cenary proposals of the Directory of, 
124 ; decrees of blockade, 136 ; cedes 
Louisiana territory, 135 ; revolution 
in, referred to, 5, 106, 117, 121, 132. 

Franklin, Benjamin, testimony of, re- 
specting colonies, 34 ; suggests a con- 
tinental congress, 37 ; delegate in 
constitutional convention, 62 ; char- 



acter of, 62 ; proposes compromise in 
constitutional convention, 62 ; peti- 
tions first congress in behalf of slaves, 
182; death of, 182. 

Free discussion, advantages of, 315. 

Fremont, General, proposes to free 
slaves, 204. 

Fugitive slave law, first, 183; of 1850, 
193 ; hostility to, 194 ; repealed, 205 ; 
case in Wisconsin, 239. 

Fuller, Melville W., Chief Justice, 243. 

Garrison, William Lloyd, 1 89. 

Genet, French minister, troubles caused 
by, 122; recalled, 122. 

Geneva award, the, 220. 

Georgia, provincial government of, 20 ; 
religious liberty in, 32; resists su- 
preme court, 237, 254 ; secedes, 203 ; 
" Yazoo frauds," 261. 

Government by law, 9 ; under the con- 
stitution begins, 97; necessity for, 
303 ; how constituted, 303 ; perver- 
sions of, 304 ; an instrumentality of 
cooperation for public good, 305 ; ten- 
dency of power to abuse, 306. 

Great Britain, constitution of, 7; power 
of the queen, 8 ; allegiance of the col- 
onies to, 18; grants charters to col- 
onies, 20 ; takes New York from the 
Dutch, 23; laws of, models for col- 
onies, 24, 45 ; neglects the colonies, 
25 ; oppressive trade and navigation 
acts, 25 ; regards colonies as civil 
corporations, 24; church of, 28; tol- 
eration act of, 29 ; claims right to tax 
colonies, 33, 35 ; stamp act passed, 34 ; 
attempts to coerce Massachusetts, 38 ; 
declares Massachusetts in rebellion, 
39; colonies revolt against threat- 
ened oppression of, 45 ; hostile navi- 
gation regulations after the revolu- 
tion, 56 ; commercial influence of, 56 ; 
troubles with, 120; treaty with, 123 ; 
treaty expires, 134 ; troubles renewed, 
136; war with, 138; peace, 138; Ge- 
neva arbitration, 219 ; tendency of, to- 
wards unlimited Democracy, 348. 

Hamilton, Alexander, delegate to 
constitutional convention, 63 ; char- 



INDEX. 



383 



acter of, 63, 103, 108 ; favors strong 
government, 64 ; delegate to N. Y. 
convention, 88; writes portions of 
" Federalist," 88 ; first secretary of 
treasury, 102; influence in organiz- 
ing government under constitution, 
103 ; financial measures of, 104, 105 ; 
cooperates with Jefferson to locate 
capital and assume state debts, 107 ; 
leader of federal party, 107; upon 
French treaty, 121 ; aids election of 
Jefferson, 134; quoted, upon depart- 
ments of government, 70 ; upon prob- 
ability of ratification, 83 ; upon finan- 
cial policy, 104; upon bank, 112; 
upon action by Virginia, 115 ; upon 
liberal construction of constitution, 
130; upon the judiciary, 241 ; upon 
supremacy of constitution, 252 ; upon 
power of individual to sue a state, 
253; upon government, 308, 317. 

Hancock, John, in Massachusetts con- 
vention, 80 ; upon power of individual 
to sue a state, 254. 

Harlan, Justice, quoted, 283. 

Harrison, William H, President, 166. 

Hartford convention, 139. 

Hayes, Rutherford B., President, 220; 
his administration, 221. 

Henry, Patrick, refuses to attend con- 
stitutional convention, 62 ; opposes 
ratification, 85. 

Higher law, the, 190, 219. 

History, new era in its teachings, 326. 

Holy alliance, the, 145. 

Houston, Samuel, sketch of, 168. 

Immigration, not dangerous, 336. 

Indians, peace with, 119; not citizens, 
216; The Cherokee case, 237. 

Internal Improvements, 142 ; appro- 
priations for, 142. 

Iowa admitted, 194. 

Jackson, Andrew, gains battle of 
New Orleans, 138 ; candidate for 
President, 146 ; character of, 147 ; be- 
comes President, 148; his administra- 
tion, 149 ; removes deposits of U. S., 
151 ; censured by Senate, 151 ; res- 
olution expunged, 151 ; his union 



toast, 160; proclamation against nul- 
lification, 161 ; tribute to, 165 ; opin- 
ion upon power of supreme court, 
232, 237. 

Jay, John, author of first constitution 
of N. Y., 44; minister to England, 
57 ; writes portions of " Federalist," 
88; chief justice, 123, 242; nego- 
tiates treaty with England, 123 ; op- 
position to the treaty, 123; resigns 
as chief justice, 242. 

Jefferson, Thomas, first secretary of 
state, 102; influence of, 103; char- 
acter and fame of, 108 ; contentions 
with Hamilton, 108; his account of 
the adoption of the capital and as- 
sumption bills, 106 ; views of Hamil- 
ton's methods, 115; sympathy with 
whiskey rebellion, 118; leader of 
anti-federalist party, 107, 127; au- 
thor of Kentucky resolutions, 127; 
opposition to the federal administra- 
tion, 128; fears monarchy in U. S., 
129 ; elected President, 129, 134 ; his 
administration, 131-137 ; purchases 
Louisiana, 135 ; recommends em- 
bargo, 136; quoted, 110, 112, 115, 
129, 130, 231. 

Johnson, Andrew, President, 207 ; char- 
acter of, referred to, 207, 210, 213 ; 
attempts reconstruction alone, 208 ; 
measures for, 211; failure of his 
measures, 211 ; impeachment of, and 
its failure, 213; Congress passes acts 
over his veto, 214, 244. 

Judiciary Department. See Supreme 
Court. Creation and powers of, dis- 
cussed in constitutional convention, 
73 ; weak in the beginning, 227 ; un- 
certainty as to powers, 227 ; weakest 
in the government, 241 ; jurisdiction 
of, 242 ; appellate jurisdiction of 
judgments of state courts, 262 ; re- 
sisted, 262-267 ; proposition to re- 
peal act conferring jurisdiction of 
state judgments, 267 ; popular senti- 
ment respecting, 335. 

Kansas, struggles in, 196; admission 

as a free state, 200. 
Kansas-Nebraska bill, 196, 197, 199. 



384 



INDEX. 



Kentucky, admitted, 116; adheres to 
the Union, 203. 

Lee, Richard Henry, opposes ratifi- 
cation of constitution, 86 ; favors 
fair trial after its ratification, 98. 

Legal tender cases, 244, 301. 

Lexington and Concord, battles of, 39. 

Lincoln, Abraham, on slavery, 197; 
elected President, 203 ; disclaims pur- 
pose to interfere with slavery, 203 ; 
overrules Fremont's plan to free 
slaves, 204 ; issues emancipation 
proclamation, 205; character, 206; 
death, 206 ; reserves reconstruction 
to himself, 207 ; plan for reconstruc- 
tion in Louisiana, 209 ; supported by 
the people against Congress, 210; 
quoted, upon power of supreme 
court, 234 ; action in Merryman's 
case, 240. 

Local self-government, in colonies, 3 ; 
in states, 5 ; essential part of Amer- 
ican system, 319, 321. 

Louisiana, opposition to admission of, 
187 ; secedes, 203; reconstruction of, 
209. 

Louisiana territory, purchase of, 135 ; 
constitutionality of purchase, 135; 
importance of, 135. 

Lundy, Benjamin, 189. 

Machine politics, 149, 166. 

Madison, James, delegate to constitu- 
tional convention, 63 ; character of, 
63 ; proposes privy council, 72 ; doubt- 
ful about ratification, 81 ; in Virginia 
convention, 86 ; writes portions of 
" Federalist," 88 ; useful labors in 
first Congress under constitution, 98 ; 
President, 137 ; quoted, upon slaves, 
182 ; upon supreme court, 235 ; upon 
principles of government, 307, 313, 
316, 322. 

" Madison Papers," 64. 

Marshall, John, in Virginia conven- 
tion, 86 ; expositions of constitu- 
tion, followed by Webster in reply to 
Hayne, 157, 271; referred to, 171, 
260, 272 ; chief justice, 243 ; secre- 
tary of state, 259 ; quoted, 114, 266, 



268, 270 ; present influence and fame 
of, 277. 

Martin, Luther, remarks in constitu- 
tional convention, 68; letter in op- 
position to ratification, 85 ; referred 
to, 269. 

Maryland, proprietary government of, 
20 ; religious liberty in, 27 ; becomes 
a state, , 44 ; sends delegates to con- 
stitutional convention, 61 ; adheres 
to Union, 203. 

Massachusetts, representative assembly 
in, 21 ; illiberal charter of 1692 ex- 
panded by usage, 22; religious lib- 
erty developed in, 27 ; deprived of 
charter privileges, 38 ; ratifies con- 
stitution, 84; attitude in war of 
1812, 139 ; sends delegates to Hart- 
ford Convention, 139. 

Merryman's case, 240. 

Mexico, war with, 170; results of the 
war, 170. 

Miller, Justice, quoted, 279 ; construes 
fourteenth amendment, 284. 

Minor's case, 288. 

Mississippi, secedes, 203. 

Missouri, admitted with slavery, 188; 
compromise, 189; compromise de- 
clared unconstitutional, 200 ; adheres 
to the Union, 203. 

Monroe, James, opposes ratification of 
constitution, 86 ; letter to Jackson, 
131 ; becomes President, 141 ; his ex- 
ecutive ability, 141 ; reelection, 141 ; 
vetoes bill for Cumberland Road, 142 ; 
veto message suggests river and har- 
bor improvements, 143 ; signs Mis- 
souri compromise bill, 189. 

Monroe doctrine, the, 144 ; applied in 
case of Mexico, 145. 

Montesquieu, referred to, 5, 88, 178; 
quoted, 313, 316, 323. 

Morocco, government of, 323. 

Napoleon's wars, 136 ; effect of his 
overthrow on our war with England, 
138. 

Navigation acts, in restraint of colo- 
nial trade, 23; after the revolution, 
56. 

Nebraska, 195 ; bill for government of, 



INDEX. 



385 



195; excitement caused by passage 
of amended bill, 199. 

Negroes. See Slavery. Laws of seced- 
ing states against, 212; equal rights 
and suffrage given to, 216, 219 ; con- 
dition of, 218. 

Neutrality, in French Revolution, 122. 

New Hampshire, provincial govern- 
ment of, 20 ; first to adopt state 
constitution, 43; sends delegates to 
constitutional convention, 61 ; rati- 
fies constitution, 86. 

New Haven, colony of, 21. 

New Jersey, provincial government of, 
20 ; religious liberty in, 32 ; forms 
state constitution, 43; ratifies consti- 
tution, 83; threatens to repudiate re- 
quisitions of confederacy, 59. 

New York, settled by the Dutch, 22 ; 
struggles of people for liberty, 22 ', 
religious liberty in, 31 ; becomes a 
state, 44 ; votes with small states in 
constitutional convention, 67 ; two of 
her delegates withdraw from conven- 
tion, 87 ; convention of, opposed to 
ratification, 86 ; Governor Clinton 
opposes, 87; remarks of, 91; tenth 
state to ratify, 95 ; not participating 
in first presidential election, 97; re- 
sponse of assembly of, to Virginia 
and Kentucky resolutions, 128. 

Non-intercourse acts, in war of 1812, 
136. 

North Carolina, Locke's constitutions 
for, 30 ; settlers in, 30 ; religious lib- 
erty in, 30; forms state constitution, 
45 ; twelfth state to ratify constitu- 
tion, 95 ; cedes western territory sub- 
ject to slavery, 185 ; secedes, 203. 

Nullification, 155, 160; constitution- 
ality of, discussed 155-160; ordi- 
nance of, 161 ; South Carolina stands 
alone, 161 ; measures to suppress, 
162; averted by compromise, 162; 
opposition to the compromise, 162; 
South Carolina claims the victory, 
162,165. 

Ohio, opposition in to judgment of 

U. S. court, 267. 
Orders in Council, British, 80. 
25 



Ordinance, for government of North- 
west Territory, 99; effect of, 185; 
of nullification, 161. 

Oregon, territory, acquired, 186; boun- 
dary settled, 194. 

Parliament, power of, 8; conserva- 
tion of members of, 8 ; right of, to 
tax America, 35 ; to bind colonies in 
all cases, 37 ; imposes duties upon 
imports, 36 ; distinction between acts 
of, and of Congress and state legis- 
latures, 246 ; tendency of, toward 
democracy, 348. 

Parties, political, formation of, 107 ; 
early contentions of, 116; decay of 
in Monroe's administration, 146 ; 
formation of new, 146 ; democratic, 
116, 123, 146, 192; whig, 166, 195; 
anti-slavery, 169-197; republican, 
197. 

Pennsylvania, proprietary government 
of colony of, 20 ; religious liberty in, 
32 ; adopts tariff before the constitu- 
tion, 56 ; sends delegates to constitu- 
tional convention, 61 ; ratifies consti- 
tution, 83 ; resists supreme court, 264. 

People, the, confer sovereign powers, 6 ; 
govern indirectly through their offi- 
cers, 309 ; why so reliable, 315, 316 ; 
their vices utilized, 314 ; their virtue 
increasing, 330. 

Physical features of U. S. contribute to 
union, 324. 

Pierce, Franklin, President, 195. 

Pinckney, Charles C, 58; delegate to 
constitutional convention, 63 ; pro- 
poses plan of constitution, 65 ; quoted 
upon protection given to slavery by 
the constitution, 181. 

Pinkney, William, Marshall's opinion 
of, 268. 

Political clubs formed by Genet, 122. • 

Population, increase of, 331. 

Post-offices in 1789,99. 

President, the, discussion over in consti- 
tutional convention, 72 ; how chosen, 
72, 134 ; duties of, 13, 72 ; why made 
eligible to reelection, 71 ; first elec- 
tion of, 97 ; power to remove officers, 
99 ; executive power, extent of, 129 ; 



386 



INDEX. 



as commander-in-chief, 205 ; to recon- 
struct states, 208. 

Provisional governments for seceded 
states, 211. 

Public lands should be reserved for 
actual occupants, 332. 

Quebec, consequences of capture of, 
18. 

Railroads, extent and business of, 
122. 

Randolph, Edmund, remarks of, in 
constitutional convention, 64. 

Ratification of the constitution, in Del- 
aware, Pennsylvania, New Jersey, 
Georgia, and Connecticut, 83 ; strug- 
gle in Massachusetts, 83 ; ratified, 
84 ; in Maryland and South Caro- 
lina, 85; opposition in Virginia, 85; 
ratified, 86 ; in New Hampshire, 86 ; 
opposition in New York, 86 ; sketch 
of debates in New York convention, 
89-95 ; ratified, 95 ; in North Caro- 
lina, 95 ; in Rhode Island, 96. 

Reconstruction of seceded states, 207 ; 
constitutional authority for, 208 ; ob- 
jects to be attained, 207 Lincoln's 
views of, 207, 208, 210; his plan in 
Louisiana, 209 ; congressional objec- 
tions to, disregarded, 210 ; President 
Johnson undertakes, without aid of 
Congress, 208 ; amnesty proclama- 
tion, 211; action by seceded states, 
212 ; oppressive laws against negroes, 
212; failure of Johnson's plan, 212; 
Congress takes control, 213; popu- 
lar feeling in seceded states, 213; 
congressional plan and action, 214; 
the civil rights bill, 214; fourteenth 
amendment, 214, 215; Tennessee 
readmitted, 214 ; seceded states read- 
mitted, 215; impeachment of Presi- 
dent Johnson and its failure, 215 ; 
negro suffrage, 216; carpet-bag gov- 
ernment, 217 ; resumption by the 
whites of political power, 217 ; con- 
dition of the negro, 218; negro suf- 
frage at the North, 219. 

Religion influence of, upon the state, 
339. 



Religious liberty, development of, in the 
colonies, 27. 

Removal of deposits, 151. 

Removals from office, 149. 

Republican party, 197. 

Revolution, the, causes leading to, 23, 
33, 38 ; declaration of war of, 41 ; 
treaty of peace, 53 ; soldiers of, un- 
paid, 53 ; debts incurred for, 53. 

Rhode Island, charter of, continued as 
state constitution, 21 ; religious lib- 
erty in, 27 ; refuses to ratify amend- 
ments to Articles of Confedera- 
tion, 54, 62 ; does not participate in 
making constitution, 61 ; last state 
to ratify, 96 ; slavery in colony of, 
178; rival governments of, in 1842, 
322. 

Rivers and harbors, improvement of, 
142 ; extravagant appropriations for, 
143; bill for, vetoed by Presidents 
Pierce and Arthur, 143. 

Russia, friendship of in war of 1812, 
138 ; government of 323. 

Secession, by eleven states, 203. 

Sedition law, prosecutions under, 127. 

Shays' rebellion, 61, 84. 

Sidney Algernon, quoted, 111. 

Slaughter-House cases, 284. 

Slavery in United States, 175; how 
introduced, 175; influence upon, of 
religious wars, 175; legality of, in 
colonies, 176; Somerset's case, 176; 
positive law necessary to create it, 
176; so declared by constitution, 
177; early slave-trade, 177; condi- 
tion of negro when first imported, 
177; institution tolerated, 178; 
emancipation of, in nineteenth cen- 
tury, 178 ; Jefferson opposed to, 178 ; 
constitution established it, 179-182 ; 
early petitions to Congress to abolish, 
182; first fugitive slave law, 183; 
abolition by northern states, 183; 
abolition societies, 184, 190; Amer- 
ican Colonization Society, 184 ; new 
free and slave states admitted in 
pairs, 184, 186; Ordinance of 1787, 
185; admission of Louisiana, 187; 
Missouri Compromise, 189; Benjamin 



INDEX. 



387 



Lundy, 189; William Lloyd Gar- 
rison, 189; rise of abolition party, 
190; higher law, 190; laws respect- 
ing slaves, 191 ; petitions to Congress 
suppressed, 191 ; attitude of whig 
and democratic parties, 192; Wilmot 
Proviso, 192; compromise measures 
of 1850, 193; admission of Califor- 
nia as a free state, 193; new fugi- 
tive slave law, 193; repeal of, 205; 
abolition of slave-trade in District 
of Columbia, 193; governments for 
Utah and New Mexico, 193 ; features 
of fugitive slave law, 1 94 ; excite- 
ment caused by, 194; whig party 
expires, 195 ; the Nebraska bill, 195 ; 
Kansas-Nebraska bill, 196, 199 ; " Un- 
cle Tom's Cabin," 197 ; formation of 
republican party, 197; position of, 
196,202; repeal of Missouri Com- 
promise, 196, 199 ; constitutional 
power of Congress over slavery in 
the territories, 196, 197, 198, 200, 201, 
202 ; Dred Scott case, 200, 201, 202, 
206 ; popular sovereignty, 196, 200; 
Senator Sumner assaulted, 1 99 ; emi- 
grant aid societies, 199; division in 
democratic party, 202 ; election of 
President Lincoln, 203 ; Congress 
proposes amendment of constitution 
to establish slavery more firmly, 203 ; 
secession of eleven states, 203 ; " The 
Confederate States of America," 203 ; 
rebellion, 203 ; right to coerce seced- 
ing states, 203 ; uprising of the peo- 
ple, 204 ; slaves in war, 204 ; " con- 
traband of war," 205 ; emancipation 
proclamation, 205 ; scope of, 205 ; 
the thirteenth amendment, 206 ; revo- 
lution in northern sentiment, 205 ; 
character of Lincoln, 206. 

South Carolina, provincial government 
of, 20; settlers in, 30; religious lib 
erty in, 30; becomes a state, 43 
sends delegates to constitutional con 
vention, 61 ; cedes western lands, 67 
opposed to frequent elections, 71 
nullification in, 155-165; secedes, 
203. 

Sovereignty, definition of, 6; distribu- 
tion of powers of, 6; relation of the 



people to, 6 ; U. S. has no powers of, 
except as granted, 301. 

Spain, hostility of, 136 ; cedes Florida, 
144; retrocedes Louisiana territory 
to France, 167 ; cedes claims to Ore- 
gon, 186 ; independence of dominions 
of, in America, 144; constitutions of 
Spanish republics, 324. 

Spirit of nationality, influence of, 325. 

Spoils system, 149. 

Spoliation of property, a danger to lib- 
erty, 329. 

Stamp act and tax, 34 ; repeal of act, 
35. 

Stamp act congress, 34. 

States, greater number of their powers, 
10; limitations of their powers, 11 ; 
constitutions of, easily amended, 14 ; 
relations to U. S., 15; hostility to 
U. S., 16; state sovereignty, 16; 
colonies formed into, 42-45 ; separate 
action of, after revolution, 55 ; jeal- 
ousies among, 57 ; contracts im- 
paired by, 58 ; appoint delegates to 
constitutional convention, 61 ; repre- 
sented by senators, 69 ; ratify con- 
stitution, 82-96; decentralization of 
power in, 310 ; good results of sepa- 
rate governments of, 320. 

Sub-treasury, 166. 

Sumner, Senator, assaulted, 199. 

Supreme Court of the U. S. See Ju- 
diciary Department. Exposition of 
the constitution by, 226 ; its present 
influence results from natural growth, 
228; happily constituted, 228; indi- 
rect influence over other depart- 
ments, 228; reasons for, 230, 233; 
protests against, 231 ; superiority dis- 
claimed, 231 ; Jefferson's opinion, 
231 ; Jackson's opinion, 232 ; stabil- 
ity of the court, 233 ; Madison's opin- 
ion, 234, 235 ; cases in which execu- 
tive and legislative departments may 
disregard opinion of court, 234; Lin- 
coln's opinion, 234 ; will direct per- 
formance of ministerial acts, 235 ; 
performs only judicial functions, 236 ; 
no power to enforce its decrees, 236 ; 
instances of executive refusal to ex- 
ecute decrees, 237 ; in Georgia, 237 ; 



388 



INDEX. 



in Wisconsin, 239 ; Merryman's case, 
240 ; narrow constitutional protection 
of, 241 ; sketch of organization of, 
242 ; congressional modifications of 
organization and jurisdiction, 243; 
regard of, for state rights, 245 ; busi- 
ness of, 246 • novelty of power to de- 
clare unconstitutional law void, 246; 
judiciary act, 253 ; court declares in- 
dividual may sue a state, 254 ; elev- 
enth amendment to constitution nul- 
lifies decision, 254 ; state repudiation 
the result, 254 ; Virginia coupon 
case, 255 ; cases in which the power 
to declare an unconstitutional law 
void was discussed, 257 ; Justice 
Samuel Chase's opinions, 257, 258 ; 
Marbury v. Madison, 259 ; state 
courts declare unconstitutional laws 
void, 260; Yazoo frauds case, 261; 
appellate jurisdiction of judgments in 
state courts, 262 ; argument against, 
263 ; jurisdiction sustained, 264 ; 
resistance in Pennsylvania, 264 ; in 
Ohio, 266 ; attempt to repeal twenty- 
fifth section of judiciary act, 267; 
case of the constitutionality of char- 
ter of Bank of U. S., 267 ; state can- 
not tax governmental agency of U. S., 
269 ; court declares the constitution 
to be a government created by the 
people, not a compact between states, 
270; the court is the final arbiter, 
271 ; fears that change of members 
would change principles of construc- 
tion, 272 ; dissenting opinions of Jus- 
tice Daniel, 273; effect of declaring 
laws void, 273; judges in 1861, 27.5 ; 
power of the President to establish 
blockade, 275 ; war powers, 276 ; 
supremacy of civil over military 
power, 277 ; war vindicates the doc- 
trine of the court, 278 ; conservative 
construction given to the recent 
amendments, 281 ; powers of the 
states upheld, 287, 297 ; declares that 
the states and not the nation confer 
privileges and immunities, 289, 291 ; 
the negro protected from discrimina- 
tion respecting civil rights, 290, 292 ; 
effect of recent amendments not fully 



ascertained, 296 ; due process of 
Jaw, 296 ; expansion of the power 
to regulate commerce, 299 ; obliga- 
tion of contracts, 300; notes a legal 
tender, 301 ; political cases, 302 ; tax- 
ation, 302. 
Swayne, Justice, quoted, 283. 

Taney, Roger B., Chief Justice, 243 ; 
quoted, 179, 181, 271 ; referred to, 
275, 276 ; death, 277. 

Tariff, of first Congress, 98; of 1812, 
141, 151 ; of 1816, 152 ; of 1824 and 
1828, 153; constitutionality of pro- 
tective, 154; protective, effect of, on 
slave interests, 154 ; explanation of, 
for protection, for revenue only, 222 ; 
suggestion of judicial tribunal to reg- 
ulate, 225. 

Taxation, of the colonists, 33, 35, 37 ; 
exports exempted from, 79 ; by states 
and nation, 225. 

Taylor, Zachary, President, 170. 

Tennessee, admitted, 116 ; secedes, 203 ; 
readmitted, 214. 

Texas, claim to, given away, 144 ; early 
condition of, 167; annexed and ad- 
mitted, 170; secedes, 203. 

Town meetings, 23. 

Treaties : between England and France 
in 1762, 37 ; under confederation, 50 ; 
with England in 1783, 53 ; states for- 
bidden to make, 77 ; with the In- 
dians, 119; with France in our revo- 
lution, 121; Jay's treaty with Eng- 
land, 123; expires, 124; opposition 
to, 124; constitutionality of opposi- 
tion, 124; with Napoleon in 1801, 
125; with Napoleon in 1803 for 
Louisiana territory, 135 ; with Eng- 
land, 1814, 138 ; with Spain for Flor- 
ida, 144, 186 ; with England, Oregon 
boundary, 186; of Utrecht, 187., 

Tyler, John, President, 166 ; character 
and administration, 166. 

"Uncle Tom's Cabin," 197. 

United States, has little territorial ex- 
istence, 9 ; a power more than a body, 
9; powers of, illustrated, 11 ; has 
comparatively few powers, 12; su- 



INDEX. 



389 



premacy of its powers, 12, 30S ; de- 
velopment of its departments, 13; 
government under constitution be- 
gins, 97 ; reasons why it cannot 
usurp control of states, 309 ; condi- 
tions favoring its stability, 303-328 ; 
possible dangers, 329. 

Universal suffrage, benefits of, 334 ; 
dangers, 329, 332. 

Utah, government for, 193. 

Van Burex, Martin, President, 165; 
character and administration, 165 ; 
establishes Sub-Treasury, 166. 

Vermont and Kentucky, admitted, 116. 

Veto, by the king in the colonies, 23; 
President's power, 72 ; the first veto 
overruled by Congress, 143; of U. S. 
bank charter, by Jackson, 150; by 
Tyler, 167 ; exercise of, useful, 150; 
Johnson's overruled, 214. 

Vice-President, office created, 71 ; be- 
coming President by death of Presi- 
dent, remarks upon, 213. 

Virginia, settlement and early govern- 
ment of, 20 ; has first representative 
assembly, 21 ; education in, 26 ; re- 
ligious liberty in, 28 ; cedes western 
lands, 58 ; takes action leading to 
the constitutional convention, 59; 
ratifies constitution, 86 ; builds ar- 
mory, 128; secedes, 203. 

Virginia and Kentucky resolutions, 
127, 137, 155. 

Virtue, public, effect of decay of, 338. 



Waite, Morrison R., Chief Justice, 
243 ; quoted, 289, 298. 

War of 1812, causes leading to, 137 ; 
how waged, 138 ; peace gladly made, 
138 ; prosperity following it, 141 ; 
influence upon manufactures, 141. 

War powers, as construed by the su- 
preme court, 275. 

Washington, George, commander-in- 
chief, 41 ; delegate to constitutional 
convention, 61 ; character of, 62 ; 
elected first President, 97 ; his admin- 
istration, 99-124; remarks of, upon 
monarchists, 132. 

Wayne, Justice, 275. 

Wayne's victory over the Indians, 119. 

Wealth, obligations imposed upon, 320. 

Webster, Daniel, opposes tariff, 141 ; 
favors it, 152 ; reply to Hayne, 157 ; 
his argument and its effect, 157-159 ; 
validity of argument, 163; not a 
constructive statesman, 172; quoted, 
104, 206, 242; referred to, 268, 271, 
272. 

Western lands, cession of, 58, 184. 

Whig party, formed, 166; objects of, 
195 ; expires, 195. 

Whiskey rebellion, 118. 

Wilmot Proviso, 192. 

Wilson, James, delegate to constitu- 
tional convention, 63 ; to Pennsyl- 
vania convention, 83 ; speeches of, 

* 83. 

Winthrop, Governor, quoted, 111. 

Wisconsin, fugitive slave case in, 239. 



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